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62 Cards in this Set

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Will Opening Shot

A will is a testamentary instrument which devises one's assets and property to beneficiaries upon death. In order for a will to be valid, it must have testamentary intent, capacity by the testator and follow CA Probate rules of construction formalities. The formalities of a will require upon death that the will be in writing, with testamentary intent, signed by testator and witnessed by two disinterested parties.

Intent - Capacity

At time of execution, testator must have:

1) 18yo

2) be able to understand the extent of her prop

3) know the natural objects of her bounty

4) Know the nature of her act

**entire will is invalid**

Intent - Insane Delusion

1) testator had a false belief;

2) that belief was a product of a sick mind;

3) there is no evidence to support the belief

4) delusion must have affected testators will

**Only the part of the will that was effected is invalid, it will go to residuary devisee**

Intent - Fraud

1) Representation;

2) Of a material fact;

3) known to be false by the wrongdoer;

4) for the purpose of inducing action/inaction; AND

5) Does induce action/inaction

Fraud can be in the execution, inducement of a gift, or preventing testator from revoking.

Intent - Undue Influence - Prima Facie

(always discuss all three types)

1) Testator has a weakness such that she is susceptible;

2) the wrongdoer has access to the testator;

3) It is the wrongful act that gets the gift;

4) An unnatural gift.

**Only the part of the will that is affected by undue influence is invalid**

Intent - Undue Influence - Presumption

1) A confidential relationship between testator and wrongdoer;

2) the wrongful act gets the gift; AND

3) An unnatural gift

Intent - Undue Influence - Statutory UI CA

CA invalidates a donative transfer from testator to:

1) Person who drafted the instrument;

2) Person who is related to, married to, or cohabitates w/, or is an employee of the drafter;

3) A person who is in a fiduciary relationship w/ the testator and who transcribes the testamentary intstrument.

**these rules do not apply if the testator is related to , married or cohabitates with the drafter**


Mistake in:

1) Content: wrong bene or wrong gift

**no relief if words accidentially left out

2) Execution: Testator signs wrong document

**If no intent, no will

3) Inducement: Gift made by erroneous belief

**No relief

4) Description: Ambiguity in description

**Parol evidence allowed

Mistake - DRR

1) If testator revokes her will, or a portion;

2) In the mistaken belief that a substantially identical will or codicil effectuates her inent;

3) then, by operation of law;

4) the revocation of the first will be deemed a condition, dependant, and relative to teh second effectuating the testators intent

5) if the second does not effectuate testators intent, the first was never revoked.

Mistake - Pretermission

A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.

1) Child takes intestate share

If child born before all testamentary instruments are executed and is not provided for is not pretermitted unless the only reason the child was not provided for was because the child was thought to be dead or non existent

Components of the will - integration

Refers to which papers make up the will

1) Intent: testator must have intended for the papers in questino to be part of the will;

2) Presense: the paper must have been actually/physically present at time of execution.

Components of the will - Incorporation by reference

Allows a non integrated writing to become part of the wil if:

1) The document existed at execution

2) the document is clearly identified in will

3) Testator intended to incorporate

Components of the will - Facts of Ind. Significance

Who a beneficiary is, or what gift is given may be given meaning by facts of significance ind. from the will.

**Allows the court to fill the gaps**

Pour Over Wills

Testators estate is devised to the trustee of an inter vivos trust that may be admitted into probate.

Pour over provisions effecutated by

1) incorp by reference

2) ind. significance

Attested Will

The will:

1) Must be in writing

2) Signed by testator, or legally authorized person

3) Signing done in presence of two witnesses

4) Witness must sign will (does not have to be in presence of testator)

Attested Will - Interested WItnesses

If the witnesses are bene's it is invalid unless there are two other disinterested witnesses.

**There is a rebuttable presumption**

Holographic WIll

1) Must be signed by the testator

2) The material provisions must be in testators handwriting

**Extrinsic evidence admissible to show intent

**Series of letters can be a will

**If no date, another, inconsistent will takes precedence


A testamentary instrument executed in compliance w/ the CA provate code which modifies, amends or revokes a will.

Revocation - Physical Act

1) Must be burned, torn, cancelled, destroyed or obliterated (material part of will)

2) Intent to revoke

3) Act must be done by testator or in testators presence

Revocation - Subsequent Written Instrument

Can be expressed or implied

**Revival may occur if testator manifests intent to revive first will

Revocation - Operation of Law

Omitted child unless:

1) Failure to provide was intentional

2) Testator evidenced a plan that child's other parent would provide financially

3) testator provided for the child outside of the instrument

Omitted Spouse unless:

1) Failure to provide was intentional

2) Provided for spouse with another transfer

3) Waiver


Specific: A devise or gift of a particular item of prop distinct from all other objects in the testator's estate

General: A gift of a general economic benefit, payable out of the general assets of the estate.

Demostrative: Hybrid

Revocation - Ademption (only applies to specific legacy)

A legacy will fail if no longer owned by testator at death. However, in CA ademption depends on whether the testator intended to adeem (revoke) the gift when he disposed of the prop.

**extrinsic evidence allowed to show intent**

Revocation - Satisfaction

An inter vivos gift to the bene is deducted from the devise, where the testator expressed in a written document that she intended the gift to be in satisfaction of the devise.


Testator can contract to make, not to make, revoke or not revoke a will, contract law controls.

Intestate succession

Community Prop: Surviving spouse inherits the decendents 1/2 of the CP and 1/2 of quasi CP

SP: If no issue, parents, sibling - all to surviving spouse

**If survived by one child or issue of deceased child - 1/2 to child, 1/2 to spouse

**If survived by 2 or more children or issue of deceased children, 1/3 to spouse 2/3 to children

Per Capita

1) issue of the same degree take "per capita", equally and in their own right

2) Issue or more remote degrees take "per capita w/ rep.

Per Stirpes

Make the distribution at the first generation or first level, even if everyone is dead, so long as they have life issue. The issue then steps into the shoes of their predeceased ancestor.

Distribution - Lapse

If the bene does not survive testator, bene's gift lapses, or fails, unless testator expresses a contrary intent in the will.

**If the devise is a class gift, only survives class members take b/c the will speaks at the time of the testators death. Deceased class members share will have deemed to lapse.

Anti Lapse

If bene predeceases testator and gift lapses, then under CA anti lapse statute if the deceased bene is a blood relative of the testator, testator's spouse, or domestic partner, then the issue of the predeceased bene will take bene gift.

Simultaneous Death

When two people die at the same time and time of death cannot be established, prop of each decedent is treated as if he predeceased the other.

Increased Value of Prop


During testators lifetime: Stock dividends or splits paid during testators lifetime go to the bene if still owned at death

During Probate: Bene receive increase only if specific

Trust Definition

A fiduciary relationship with respect to prop whereby one person holds legal title for the benefit of another and which arises out of a manifestation of intent to create if for a legal purpose.


1) Must use mandatory words and not precatory words (hope and desire)

**precatory + parol evidence=trust**

2) Oral trust only for personal prop

3) If trust to take effect at settlors death must conply w/ local probate rules

Creation Inter Vivos

Transfer in trust (3rd party trustee): For a trust of RP, S must execute and deliver a deed transferring title to the trustee. For PP, S must deliver trust prop to the trustee

Declaration in trust (S as trustee): For RP, writing to satisfy SoF which indicates S is trustee. For PP, look for present manifestation of intent.


Settlor must manifest intent to create a trust


A trust must have a trustee but the court will appoint one if there is none. A trust will not fail if there is no trustee.


An ascertainable person or group of people can be the bene, including a corp or association.

Trust Res (property)

Any presently existing interest in prop that can be transferred can be the corpus of a trust.


Trust must have a valid purpose not contrary to public policy or illegal

Charitable Trust

1) Charitable purpose (look to effect not motive)

2) No ascertainable beneficiary

Cy pres: If S manifests a general charitable intent but that intent is no longer possible, the court may use cy pres.

**Extrinsic evidence allowed**

**If specific charitable intent=resulting trust**

Honorary Trust (i.e., pet trust)

A trust which has no ascertainable bene and confers no substantial benefit on society.

1) Trustee not required to carry put S goals but has the power to.

2) If trustee refuses, trust fails

Tottent Trust

A tenative bank acct. whereby the named bene takes whatever is left in the acct. at the death of owner of acct.

Spendthrift Trust

A trust which prevent the bene from transferring his right to future payments of income or principal and creditors cannot attach the bene's right to future payments

**Cant create a spendthrift trust to insulate oneself from creditors**

Spendthrift - Voluntary Alienation

Generally, the bene cannot ever voluntarily transfer his rights to future payments:

1) Sometimes a court will recognize the assignment on the ground that the bene merely has given the trustee a direction or order to pay the bene's agent or rep.

2) Prior to payment the bene would have the right to revoke the order or direction

Spendthrift Trust - Involuntary Alienation

Generally, creditors cannot attach bene's right to future payment

1) Preferred creditors can attach bene's right to future payments ( gov. creditors, those who provide necessities of life)

2) In some juris. any creditor has right to attach surplus as measured by the bene's station in life.

Support Trust

A trust which allows the trustee to pay only so much income or principal as necessary for the bene's health, support, maintenance or ed.

**Bene cannot voluntarily transfer right to future payments**

**Only preferred creditors can attach future payments**

Discretionary Trust

A trust which gives the trustee sole and absolute discretion in determining how much to pay the bene and when to pay the bene, if ever.

**If assigned, assignee steps into shoes of bene

**Creditors cant attach but if trustee has notice of debt he must pay creditor**

Resulting Trust

An implied in fact trust based upon the presumed intent of the parties. Arises when

1) PET ends by its own terms and there is no provision for res.

2)PET fails b/c there is no bene

3) Charitabel trust ends due to impossibility

4) PET fails due to illegality

5) Excess res in PET


Constructive Trust

An equitable remedy to prevent fraud or unjust enrichment. Arises when:

1) Trustee of PET or charitable trust makes a profit b/c of self dealing

2) Fraud or undue influence

3) There is a secret trust

Trustee Powers

In addition to powers expressed in trust, state law, or by the court, trustee may:

1) Sell trust prop, incur expenses, lease, borrow money, as necessary for purpose of trust.

2) Trustee may not encumber trust prop

3) May sue 3rd parties who damage trust prop

4) Joint trustees need unanimous agreement

Trustee Duties - Loyalty and Due Care

Duty of Loyalty

The trustee must administer the trust for the benefit of the bene's, having no other consideration in mind. No self dealing. Must turn over ill gotten profits to bene

Duty of Due Care

Trustee must act as a reasonably prudent person dealing w/ his own affairs

Trustee Duties - Duty to Invest

State Lists

in absence of directions, trustee must follow a list of good investments: Gov't bonds, fed insured certs of deposit, 1st DOT, stocks (maybe)

Common law prudent person

Requires trustee to act as a reasonably prudent person would in his own prop. Each investment is scrutinized. Good investments same as list.

Uniform Prudent Investor Act

Performance is measured by the entire portfolio.

Trustee Duties - Duty to Separate and Earmark


Trustee must label trust prop as trust prop.

Liable only if loss resulted from failure to earmark


Trustee cannot commingle his own funds w/ trust funds. If breached, can be removed and held liable for any loss.

Trustee Duties - Duty not to delegate

Trustee can rely on prof. advisors in reaching a decision, but cannot delegate decision making to the advisors. i.e., money manager

Trutee Duties - Duty to Account

Trustee must give bene a statement of trust income and expenses on a regular basis.

Trustee Duties - Remedy for breach

1) damages

2) constructive trust

3) tracing and equitable lien on prop

4) ratify the transaction if good to the bene

5) Remove trustee

Liability of trustee to 3rd party - contract

If 3rd party knows that the trustee is entering in to the k in her rep capacity, the trustee must be sued in her rep capacity, and personal assets are not at stake

Liability of trustee to 3rd party - torts

Only personally liable if the trustee is personally at fault, otherwise sued in rep. capacity

Modification by Settlor

Settlor can modify the trust if the settlor expressly reserves the power to modify the trust

Modification by court

1) Court can modify charitable trust

2) Court can modify pursuant to its deviation power to change the administrative or mgmnt provisions of the trust if:

**Unforeseen circ. on the part of the settlor


Termination of Irrevocable Trust

1) Settlor and all bene's agree to terminate

2) All bene's agree to terminate and all material purposes have been accomplished

3) By operation of law

**If PET of RP and trustee has only passive duties, the trust terminates under the statute of uses and the bene gets legal title by operation of law.