Wills - Ca Bar Feb 2009

Front 1

What are the "big picture" questions to consider in a Wills question?

Valentine's Day Doesn't Reflect Real Devotion

Back 1

(1) Valid will?
(2) Documents (that comprise the will)
(3) Defenses to the will?
(4) Revocation (DRR)
(5) Revival by Republication or Reexecution
(6) Distribution of assets?

Front 2

What are the elements to consider when determining whether a will is valid?

Back 2

Can I Fake?
(1) capacity
(2) intent
(3) formation

Front 3

What does intestacy mean?

Back 3

A person dies with property greater than debts and has no will or his/her will fails (partially or fully).

Front 4

What are the four requirements in order to have capacity to make a will?

Back 4

At the time of execution, testator must:
(1) be 18+
(2) understand extent of her property
(3) know natural objects of her bounty
(4) know the nature of her act

Front 5

What are the four elements necessary to establish that testator suffered from an "insane delusion" at the time of execution of the will?

Back 5

(1) T had a false belief
(2) which was product of sick mind
(3) no evidence to support the belief
(4) delusion affected T's will

Front 6

What are the consequences of finding an insane delusion at the time of execution?

Back 6

INVALID, but only as to the part of the will affected by the delusion.

The affected part will go to (1) residuary devisee (the guy designated to get the "leftovers" or if none (2) by intestate succession.

Front 7

What are the five elements of fraud?
What are the three types of fraud with regard to wills?

Back 7

(1) Representation
(2) of material fact
(3) known to be false
(4) for the purpose of inducing action or inaction; and
(5) which induces such action/inaction

THREE TYPES OF FRAUD:
(1) Fraud in the EXECUTION
(2) Fraud in the INDUCEMENT
(3) Fraud in preventing testator from revoking the will

Front 8

When does the doctrine of Dependent Relative Revocation (DRR) apply?

Back 8

DRR applies where a testator revokes his will upon a mistaken belief that another disposition of her property (subsequent will or other instrument) would be effective; and BUT FOR this mistake would have not revoked the will.

The application of DRR will set aside the revocation.

NOTE: if subsequent instrument has been defectively executed, DRR does not apply, because the prior will has NOT BEEN REVOKED and is still VALID!

Front 9

What is fraud in the execution and what are the consequences of it?

Back 9

When someone forges T's signature to a will; or T is given a document to sign that he thinks is non-testamentary in nature and signs it.

Consequence: ENTIRE WILL INVALID

Front 10

What is fraud in the inducement and what are the consequences of it?

Back 10

Where wrongdoer's representations affect the contents of T's will.

Consequence: only the part of the will affect by the representations are invalid. Court can give rest to (1) residuary devisees, or if none to heirs, or (2) constructive trust -- duty of trustee is to transfer property to intended beneficiary.

Front 11

What are the grounds to contest a will?

Back 11

(1) Defective execution
(2) Valid revocation
(3) Lack of testamentary capacity
(4) Undue influence
(5) Fraud
(6) Mistake

Front 12

What are the requirements of a finding of undue influence on a testator?

Back 12

A presumption of undue influence arises if beneficiary was:

(1) in a confidential relationship (atty/client, doc/client) with testator; and
(2) participated in execution of will; and
(3) provisions of will appear unnatural

Front 13

California law holds presumptively INVALID any will provision making a donative transfer to:

Back 13

(1) drafter of will
(2) a person related to, living with, or employed by the drafter
(3) partner/shareholder of law firm in which drafter has an interest
(4) anyone with a fiduciary relationship with testator who transcribes the will
(5) anyone related to, lives with, employed by a person w/ fiduciary relationship who transcribes;
(6) a care custodian of a dependent adult

Presumption is rebuttable with CLEAR AND CONVINCING EVIDENCE

Exceptions: (1) if testator is related to, lives with, or is the domestic partner of drafter or (2) if will is reviewed by independent lawyer.

Front 14

What are the possible consequences of mistake in the execution of a will?

Back 14

(1) If testator signs wrong document, the will is not admissible into probate.

(2) If only a provision in the will was included by mistake, some courts admit the will without the provision.

Front 15

What is a mistake in the inducement and what are the consequences?

Back 15

It is a gift made or not made by testator based on testator's erroneous beliefs (i.e. T would like to leave John $1000 but T thinks John's dead so he doesn't).

Consequence: NO RELIEF, unless both (1) mistake and (2) intended disposition if not for mistake appear on the face of the will.

EXCEPTION: if testator believes his child to be dead or does not know of child's birth, the child will receive a share in the estate equal in value to what the child would have received if T had died intestate.

Front 16

Under the California Probate Code, inheritance rights exist whenever there is a:

Back 16

parent-child relationship.

A presumption of such relationship with respect to the father exists if: (1) born within 300 days of marriage or attempted marriage; (2) father attempted to marry and is named on birth certificate or promised child support

Front 17

California Probate Code requires that a formal will must:

Back 17

(1) in Writing
(2) Signed (or acknowledged) by testator
(3) in presence of Two Witnesses
(4) who Understand that instrument being witnessed is the testator's will

Front 18

How may a will be validly revoked? When can a revocation be ineffective?

Back 18

(1) Subsequent will
(2) Destruction of will
(3) Change in family circumstances

HOWEVER, if T revokes his will upon a mistaken assumption of law or fact, the REVOCATION IS INEFFECTIVE if T would not have revoked his will had he known the truth.

Front 19

Under California law, the testator's signing or acknowledgment of his signature must occur in the joint presence of:

Back 19

at least two witnesses.

Front 20

In California, DRR applies to revocations by:

Back 20

(1) physical act
(2) ineffective (NOT defective) subsequent instrument (even if it contains an express revocation clause)

NOTE: DRR does NOT apply if the subsequent instrument is defectively executed, because a defective subsequent instrument does NOT REVOKE the prior WILL and thus, the original will is still valid.

Front 21

What effect does a defectively executed subsequent have on a previously valid will?

Back 21

None. There is no revocation, because the subsequent will is invalid.

Front 22

May a devisee in a will also be a witness to that will?

Back 22

At common law, no. However, now most states will allow an interested witness to testify (and thus validate the will), so long as his interest in the will is eliminated.

In CALIFORNIA, a devisee/witness creates the rebuttable presumption that the witness procured the devise through undue influence, menace, fraud, or duress. If witness is UNABLE to rebut, then he can only take as much as he would if T died intestate (and the will remains valid). If he can rebut, then the devise is valid.

Front 23

Which doctrines permit documents other than a will to be probated?

Back 23

(1) Integration -- papers present at time of execution that testator intended to constitute her will.
(2) Incorporation by Reference -- document must be in existence at time of will and will must expressly reference it.
(3) Acts of Independent Significance -- permits court to fill in certain blanks in T's will by referring to documents or acts effectuated during T's lifetime for primarily nontestamentary motives.
(4) Codicil -- a testamentary instrument executed subsequent to execution of will but requires same formalities of a will.
(5) Secret Trust -- gift made by T to beneficiary in reliance his promise to hold the gift property in trust for another. Enforced only if there is sufficient proof of such agreement.

Front 24

What does it mean for a gift to lapse?

Back 24

When devisee dies before the testator, but after the execution of testator's will, his gift fails, or "lapses."

Under common law, a lapsed gift

Front 25

What is the effect California's anti-lapse statute?

Back 25

If a KINDRED (blood relative of T or T's spouse) devisee predeceases the testator, his issue will take the gift (the devise won't lapse).

Front 26

What are the ways in which a will or other testamentary instrument can be revoked by physical act?

Back 26

(1) Burning -- doesn't need to be a total burning
(2) Tearing -- must be torn through a material part of instrument
(3) Obliteration -- must occur on a material part
(4) Cancellation -- writing "VOID" or "X". Must occur on a material part

Note that valid revocation requires:
(i) physical act
(ii) simultaneous to act must have present intent to revoke; and
(iii) where act is performed by another, must be at testator's direction and in testator's presence

Front 27

What is a holographic will and are they valid?

Back 27

It is a will that is handwritten by the testator and unattested (no witnesses present).

Holographic wills are valid in California, so long as the signature and material provisions are in the handwriting of the testator.

Front 28

How is a will affected by a revocation of a codicil to that will?

Back 28

RULE: act of revocation on codicil does not revoke will.

Front 29

What is the common law rule regarding REVIVAL of a testamentary instrument and what are the California distinctions?

Back 29

Under common law, the revocation of the subsequent testamentary instrument (will, codicil) would AUTOMATICALLY REVIVE the devise affected by the subsequent instrument in the original will.

Under CA law, the revival of the devise depends on the testator's intent. Extrinsic evidence is ADMISSIBLE to prove intent to revive a devise in a will.

Front 30

What is revival by reexecution and revival by republication?

Back 30

A revoked will can be revived by reexecution without the testator writing a new instrument by either (1) acknowledging his signature on the will or (2) acknowledging and have witnesses attest.

A revoked will may be revived through publication of a subsequent codicil UNLESS: (i) the revoked will has been destroyed; or (ii) the revoked will was never valid in the first place.

Front 31

What is a SPECIFIC legacy or devise?

Back 31

It is a gift of a particular item of property distinct from all other objects in T's estate.

Related concept: ADEMPTION -- under common law, a specific gift is adeemed (revoked) if it is no longer in existence at T's death.

Under CA law, ademption depends on T's intent. If it can be shown that T did NOT have intent to adeem at time he disposed of that specific property, then devisee will get proceeds traceable to the disposed gift.

Front 32

What is the California law concerning ademption?

Back 32

If refers to the revocation (ademption) of a specific devise or bequest by virtue of the fact that the specific property in the devise is no longer part of T's estate. In California, ademption depends on T's intent at the time of disposal.

Front 33

What does "issue" mean?

Back 33

Lineal descendants, including any generation of descendants such as children, grandchildren, and great-grandchildren.

Only descendants of deceased descendants may take. Descendants of a LIVING descendant CANNOT take.

Front 34

(1) How does property pass to issue of EQUAL DEGREE?

(2) of UNEQUAL DEGREE?

Back 34

(1) If issue are all of equal degree of kinship (same generation), they take EQUALLY per capita.

(2) If issue are of unequal degree of kinship to T, they take per capita with right of representation. (example: T, owner of Blackacre, has two children A and B. B has three children Y and Z. B dies before T. T then dies. A takes 1/2 of Blackcre. Y and Z take 1/4 each.)

Front 35

A pretermitted child (born, adopted, or discovered after execution of parent's will or trust) of a deceased parent takes:

Back 35

the intestate share of his deceased parent's will UNLESS:

(1) parent's failure to provide for child in the will or revocable trust was intentional and such intent appears on the face of will or trust (no extrinsic evidence allowed) OR

(2) parent provided for child by transfer outside of the will or trust in lieu of testamentary devise; OR

(3) parent had one or more children and devised or transferred substantially all of his estate to the other parent of the omitted child.

Front 36

If T dies intestate, his property goes to:

Back 36

IN THE FOLLOWING ORDER
(1) Spouse
(2) Issue
(3) Parents
(4) Issue of parents
(5) To grandparents or their issue
(6) To issue of predeceased spouse
(7) Next of kin (relative in closest kindred)
(8) Parents of predeceased spouse or their issue
(9) State of California

Front 37

Valentines Day Doesn't Reflect Real Devotion

Back 37

Validity of will
Documents related to will
Defenses to formation
Revocation of will
Revival of will
Distribution of property

Front 38

What is the rule regarding stock splits and stock dividends of a devise?

Back 38

Under the Uniform Probate Code, currently adopted by California, the beneficiary receives any increase or change in stock as a result of a stock split or stock dividend as long as:

(1) testator owned the shares of stock when will was executed;
(2) the securities owned matched the securities being gifted in the will; and
(3) the change was initiated by the corporate entity, not the testator

Front 39

Distinguish a specific devise and a general devise.

Back 39

A specific devise is a gift of a specific property ("my 1997 jeep grand cherokee"); a general devise is a gift of a general economic benefit ("my automobile").

Front 40

What is the doctrine of Acts of Independent Significance?

Back 40

Courts will fill in certain blanks in a testator's will by referring to documents or acts effectuated during his lifetime for primarily nontestamentary motives.

The critical issue is whether the act has sufficient significance apart from its impact on the will.

Front 41

Does one's status as trustee prevent them from acting as a witness during the execution of a will?

Back 41

No, because a trustee is not a beneficiary under the will, and thus is not considered an interested party.

Front 42

Formal will requirements (4).

Back 42

(1) In writing;
(2) Signed or acknowledge by testator;
(3) In the joint presence of two witnesses;
(4) Who understand that the instrument being witnessed is testator's will

Front 43

Undue Influence characteristics. (SOPU)

Back 43

Susceptibility
Opportunity
Participation in drafting
Unnatural result

Front 44

Testamentary Intent.

Back 44

Testator must PRESENTLY INTEND to make a will.

Front 45

Who can make a will?

Back 45

18+ and "of a sound mind"

Front 46

Widow's Election.

Back 46

When a husband (or wife) attempts to dispose of all the community property through his will, he can only do so with their spouse's consent.

Therefore, the surviving spouse must make an election between her share of the CP or what their decedent spouse left them in his will.

Front 47

Joint Wills.

Back 47

The will of two or more persons executed on the same piece of paper and intended to serve as the wil of each.

Admissible on the death of each testator, as if there were separate wills.

If one testator revokes, the will is still valid as to the other(s).

Front 48

Reciprocal Wills.

Back 48

Separate wills executed by two are more testators that contain substantially similar or "reciprocal" provisions. (Often these are made between husband and wife).

If one spouse revokes a will that was contracted to be irrevocable, other spouse will have a claim for breach of contract after their spouse's death.

Front 49

In the case where T has died with a pretermitted child, whose property is used to satisfy the child's share of T's estate?

Back 49

First, the share is taken from the decedent's estate not passing by will or trust.

If that is not sufficient, the share is taken pro rata from all of the beneficiaries taking under the decedent's will and/or revocable trust.

Front 50

Intent to Disinherit.

Back 50

Must appear on the face of the will.

Extrinsic evidence not admissible, and any ambiguity is resolved in favor of the claimant.

Extrinsic evidence is admissible as to lack of intent to disinherit.

Front 51

Revocable trust.

Back 51

O's inter vivos transfer of property to a trustee to pay the income to O for life and on O's death to pay the principal to O's heirs.

O can name himself the sole trustee and beneficiary, if some other transferee is given a contingent interest by the terms of the trust instrument.

Front 52

Contracts to make (or not revoke) a will.

Back 52

Valid, if the usual requirements of a valid contract are met.

Remedy for breach: imposition of a constructive trust upon the appropriate beneficiaries.

Front 53

Validity of a will.

Think: A will is "FICkle"

Back 53

Validity of a Will:

Capacity
Intent
Formalities

Front 54

Defenses to a will.

"U MF!"

Back 54

Undue influence
Mistake
Fraud

Front 55

Revocation of Will

"ROSA"

Back 55

Restriction (homicide/ elder abuse)
Operation of law (spouse/ child/ divorce)
Subsequent instrument (will, codicil)
Ademption (disposed of gift inter vivos)

Front 56

Defense of Fraud (Wills)

"PRICE"

Back 56

Prevention
Revoke failure
Inducement
Constructive trust
Execution

Front 57

Defense of Mistake (Wills)

"SPICED"

Back 57

Subsequent will or codicil
Pretermitted children
Inducement
Content
Execution
Description

Front 58

Defense of Undo Influence (Wills)

"DO US"

Back 58

Disposition
Opportunity
Unnatural result
Susceptibility