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102 Cards in this Set

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wills issues checklist (7)






intestate distribution

K's relating to wills

wills-issues checklist- long

Validity (execution-intent/capacity-choice of laws)

components(integrated-incorporation by reference-acts of ind. legal significance- codicil-pour over will)

revocation (physical act-subsequent will-operation of law-DRR)


distribution (classification of gifts-abatement- ademption- exoneration-laps/antilaps-survivor's right-bars to succession)

intestate distribution

K's relating to wills

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.

execution-Attested Will

The will:

1) Must be in writing

2) Signed by testator, or legally authorized person +in his presence

3) Signing done in presence of two witnesses who know it's T's will

4) Witness must sign will (does not have to be in presence of testator) during T's lifetime.

attested wills- if witness requirements not satisfied

will can still be treated as properly executed if the proponent of the will establishes by clear and convincing evidence that T intended the doc to be his will when he signed it.

Attested Will - Interested WItnesses

rebuttable presumption of duress menace, or undue influence.

will is invalid unless there are two other disinterested witnesses, OR, devise is made solely in a fiduciary capacity.

If W-beneficiary fails to rebut, she takes the amount as does not exceed what would be given in intestacy.

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

Intent - Capacity

At time of execution, testator must be:

1) 18yo, &

2) of sound mind, i.e.

a)be able to understand the extent of her prop

b) know the natural objects of her bounty

c) 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- no duress, menace, fraud, or undue influence

Execution or revocation of all or part of a will is ineffective to the extent that it was procured by duress, menace, fraud, or undue influence

Intent - Fraud

1) Representation or concealment;

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 (but for test)

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

fraud in:

a) execution


c)preventing a revocation

a)entire will is invalid

b)fraudulent provisions are invalid

c) court will still probate will and wrongdoer will take under a constructive trust

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

burden of proof shifts to D.

1) A confidential relationship between testator and wrongdoer;

2)wrongdoer present when will is executed

3) the wrongful act gets the gift; AND

4) 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 instrument.

CA statutory undue influence- exceptions

a. The T is related to, married to or co-habitats w/ the drafter, or

b. If the instrument is reviewed by an indep. atty who counsels T, or

c. gift is under $5k

choice of laws

– a will can be admitted to probate in Cal. if any of the following 3 rules is satisfied

a. The will complies w/ California’s formalities of execution

b. The will complies w/ the formalities of the place where the will was executed.

c. The will complies w/ the formalities of the place where T was domiciled at the time of execution.

Mistake-in content

wrong ben. named or wrong gift

i. If words are accidentally left out – no relief is given, courts do not re-write wills (but DRR may be an option)

ii. If words are accidentally added – remedy may be given – ct may strike out extra words

mistake- in execution

T signs the wrong document

i. If T sings the will believing it is a non-testamentary instrument – the will is not probated b/c T did not intend the document to be a will.

ii. It H & W have reciprocal wills and each mistakenly signs the wrong one – court may reform the will and substitute the correct names. Reasoning: it is equitable.

mistake- in inducement

particular gift is given/not given based on T's erroneous belief

i. No relief is given.

ii. Except – one narrow circumstance – when both the mistake and what T would have done but for the mistake appear on the face of the will – then court will give relief.

mistake- in description (ambiguity)

no one or nothing fits the description, or, 2 or more people or things fit the description

Court will allow introduction of extrinsic evidence for any type of ambiguity – latent or patent – to determine what the T’s intent was.

Mistake - Pretermission

1.A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument=Child takes intestate share.

2. If after the child is born there is subsequent republication of the will by codicil, the omitted child may NOT take b/c (i) the codicil republished the will, and in the alternative (ii) the codicil itself is a testamentary instrument, thus the birth took place before the codicil was executed.

3.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 question 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 -acts of Ind. Significance

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

**Allows the court to fill the gaps**

Pour Over Wills

a will that identifies a trust created by T that he can use to pour-over his probate assets into and thus avoid going through probate if the assets are less than $100,000. Example: “I give the rest and residue of my estate to the trustee of my inter vivos trust, to hold and distribute pursuant to its terms.”

i. Pour-over provision effectuated by incorporation by reference, or acts of inde. Significance.

ii. A pour-over will is valid if:

1. The trust is identified in the will,

2. The terms are set forth in an instrument other than the will,

3. The trust was executed concurrently or before the will execution.


A testamentary instrument executed in compliance w/ the CA probate code which modifies, amends or revokes a will. (same formalities as will or holographic will)

revocation of codicil= will remains valid

revocation of will= both will and codicil are revoked

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 at T's directions and in his presence

presumed revoked if

T's will was will last in his possession, and he was competent until death, and neither the will nor a duplicate can be found at T's death (presumed destroyed by T)

Duplicate Wills: If T, or someone in T’s presence and at hisdirection, revokes by physical act one of the duplicate originals, then theother duplicate original is also revoked as a matter or law.

Mutilated Wills: If a will is found in a mutilated condition at T’s death, and when last seen it was in T’s possession → rebuttable presumption that T intended to revoke it.

Revocation - Subsequent Written Instrument

Can be expressed or implied(total or partial)

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

Revocation - Operation of Law

omitted child

omitted spouse

subsequent domestic partner

devises to previous spouse after divorce or annulment

revocation by operation of law- omitted child

A will executed prior to the birth or adoption of a child which omits that child is revoked as to that child. Unless:

(1) decedent’s failure to provide for the child was intentional, and that intention appears from the testamentary instrument;

(2) D evidenced a plan that child’s other parent would take financial care of all children that they have together;

(3) D provided for the child outside the testamentary instrument w/ intent that the transfer is in lieu of any testamentary provision.

Omitted child receives an intestate share of assets decedent owned at death plus any assets held in an intervivos trust. Other gifts are abated or reduced

revocation by operation of law- omitted spouse/domestic partner

a will executed prior to marriage, and which omits the surviving spouse is revoked as to that spouse: . Unless:

(1) failure to provide was intentional, and intent appears on the instrument;

(2) D provided for the spouse by some other transfer,

(3) omitted spouse signed a valid waiver of her right to share in T’s estate.

revocation by operation of law- omitted spouse/domestic partner

what does omitted spouse get?

Omitted spouse receives a statutory share of assets decedent owned at death plus any assets held in any intervivos trust. Statutory share includes:

a. ½ of the CP and ½ of the quasi-CP (thus the spouse ends up with 100% of the CP and quasi-CP)

b. A share of the SP equal to that what she would have received if the decedent had died w/out a will, but never more than ½ the SP estate.

revocation by operation of law- divorce/ annulment
Disposition of property to a former spouse in a will executed before divorce/annulment is revoked by dissolution unless the will provides otherwise.

revocation - DRR

also under mistake

Where T revokes on the mistaken belief that another testamentary disposition will be effective (and but for the mistake, would not have revoked),but it is not effective, the court may ignore the revocation and allow the first will to take effect.

DRR- if 2nd will invalid due to fraud, duress, menace, undue influence, or ineffective execution

then revocation of the first will was never valid so DRR is not applicable


when a will is revoked by a physical act or subsequent will and then the subsequent will is revoked as well, the first will is revived if T intends for it to revive. Extrinsic evidence is allowed when revocation is performed by a physical act

classification of gifts

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.

Demonstrative: general gift that specifies the property, or a particular fund from which the gift should be made

Residuary: what remains of the estate after all other gifts are satisfied

special rules for stocks

1. If stock was never owned, then executor buys it

2. If stock was owned and language is specific (“my 100 shares of stick”) then gift is specific → ademption arises.

3. If stock splits after execution of will then gift is specific and beneficiary talks all

4. Stock dividends →courts are split. Generally Ct. looks at T’s intent and whether he owned the stock at the time of his death

Ademption (only applies to specific gifts)

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**

- 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.


occurs when gifts are reduced to enable the estate to pay the debts and credits it would otherwise not be able to pay.

abatement- order if omitted child/spouse/domestic partner

1. First abate property not passing by D’s will or revocable inter-vivos trust

2. Then abate from all beneficiaries of T’s will and revocable inter-vivos trust pro rata to the value of the gift received

abatement- order to pay off general debts

1. Intestate property

2. Residuary gifts

3. General gifts to non-relatives

4. General gifts to relatives

5. Specific gifts to non-relatives

6. Specific gifts to relatives


applies when a gift of property is made that is subject to an encumbrance, and the will requires that the devisee takes property free and clear of the encumbrance.

i. The general rules of abatement apply to enable exoneration.

ii. A specific gift of other property cannot be abated for the purpose of exonerating another gift of specific property.

Distribution - Lapse(traditional view)

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 surviving 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 (modern and in CA)

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.

unless contrary intention appears in will.

issue will take per capita, or per capita by representation

anti laps also applies to class gifts

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.

Beneficiary treated as if he predeceased T, so laps/antilaps applies

Widow's election

If D spouse attempted to dispose of more than 1/2 of CP or QCP, surviving spouse may elect to keep his devised share under D's will or his statutory share of 1/2 of CP and QCP

bars to succession

no contest clause (penalizing bene if he contests the will)


bars to succession- no contest clause

generally not enforced in CA, unless

a)it is a direct contest brought w/o probable cause, (see definition), or

2. Challenging transfer of property on the grounds that it was not the transferor's property at the time. or,

3. Filing a creditor's claim

bars to succession- no contest clause- direct contest w/o probable cause
a. Direct contest is one that alleges invalidity based on forgery, lack of due execution, lack of capacity, menace, duress, fraud, or undue influence, revocation, disqualification of a beneficiary because of interested witness, gift to a drafter, or gift to a care custodian of a dependent adult transferor.

b. Probable cause is defined as "at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted".

bars to succession- killers

intentional or felonious killers don’t take under will or intestacy and are treated as having predeceased the T and anti-lapse provisions don’t apply.


Testator can contract to make, not to make, revoke or not revoke a will, contract law controls.a. K must be established by:

i. Provisions in will stating material terms of K;ii. An express reference in the will to the K & extrinsic evidence

iii. A writing signed by T evidencing the K

iv. Clear and convincing evidence of an agreement or promise between the D and another person for claimant’s benefit.

CA holds, that the execution of a joint or mutual will does not create a presumption of a K not to revoke the will.

Intestate succession

CP: surviving S inherits the D's 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

intestate- succession order

(when no surviving S and/or remaining portion after S takes his share)

i. To issue;

ii. To parents

iii. To issue of parents (decedent’s siblings);iv. To grandparents or issue of grandparents (decedent’s aunts and uncles);

v. To issue of predeceased spouse (step-children)

vi. To next of kin

vii. To parents of predeceased spouse (in-laws) or issue of parents of predeceased spouse (siblings-in-law)

viii. Escheats to the state.

120-hour rule

Simultaneous death is defined differently under intestacy than under a will: survival must be by at least 120 hours, or the deaths will be considered simultaneous.

When passage of title to property depends on priority of death and there is insufficient evidence (less than clear and convincing) that persons have died other than simultaneously, property of each person passes as if he survived. "Other than simultaneously" is defined as surviving by 120 hours.


the intestate equivalent of "satisfaction"

An intervivos gift does not represent an intestate share (an advancement) unless there is a writing either by T (contemporaneous) or by the heir acknowledging it as such.

If advancement, then to calculate distribution, add all shares (including the advancement) to get the hotchpot (total). Divide by the number of intestate takers.

distribution methods_ per capita, stireps...


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) Declaration by owner.Must use mandatory words and not precatory words (hope and desire).Oral trust only for personal prop

**precatory + parol evidence=trust**

2) transfer of property by owner during his lifetime to trustee

3) transfer by owner in will.If trust to take effect at settlor's death must comply w/ local probate rules

4. power of appointment

5. enforceable promise

trust limitations

real prop needs writing

oral trust is by clear and convincing evidence

performed by trustee only

invalidation (see wills-fraud, undue influence, capacity)

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.

validity requires

settlor's intention

trust property

legal purpose

ascertainable bene.

court can appoint trustee


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. court will appoint one.


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

types of trust-13 of them



pour over











pour over

a trust that is structured to receive and dispose of assets at the S's death. often established by through S's will

secret trust

no bene./intent on the face of trust

S leaves a gift to the bene. on the face of his will, without indicating an intent to create a T in the will, but does so in reliance that bene. will hold the prop in trust for another

semi-secret trust

no bene. but intent exists

S leaves a gift in his will to a person in trust, but doesn't name bene.

Maj.= semi-secret T is invalid, apply a resulting a trust

Min.= extrinsic evidence allowed to prove the trust.

Charitable Trust

1) Charitable purpose (look to effect not motive) and benefits society

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 cy pres doesn't fulfill S's intent, court will apply resulting trust

Honorary Trust (i.e., pet trust)

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

1)generally invalid, unless for a pet or maintaining cemetery plots

2) Trustee not required to carry out S's goals but has the power to.

3) If trustee refuses, trust fails

4) if pet dies, resulting trust is applied

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, child support, alimony)

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. will transfer property to S or his estate 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, and cy pres not applicable

4) PET fails due to illegality

5) Excess res in PET

6) PMRT (Purchase money resulting trust)

7) there's a semi-secret trust

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 in inducement or undue influence

3) There is a secret trust

4)oral real estate trusts are created

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

duties of a trustee

8 of them. AND I DID SLIDE

1) Account

2) Not Delegate duties

3) be Impartial

4) Due care ( Investigate and Diversify investments)

5) Segregate and earmark

6) Loyalty

7)prudently Invest

8) Defend and Enforce actions

Trustee Duties - Loyalty

Duty of Loyalty

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

trustee duties- due care

Trustee must act as a reasonably prudent person dealing w/ his own affairs, which includes his duty to investigate any investment, and a duty to diversify investments.

Trustee Duties - Duty to prudently 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. advisers in reaching a decision, but cannot delegate decision making to the advisers. i.e., money manager

liable for breach if :T fails to use reasonable care in selecting agents or, T fails to remedy improper acts or, T improperly delegates(may delegate only purely ministerial functions, but not discretionary powers.)

Trutee Duties - Duty to Account

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

duty to be impartial

when dealing with the income benes and the remainderman benes.

duty to defend the trust

against actions that may result in a loss to the trust, and enforce claims that are part of the trust property.

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

1. Common law: trustee is sued in her personal capacity, so her personal assets are at stake. But trustee can get indemnification from trust assets if acting w/in her powers and was not personally at fault.2. Modern law: If the other person to the K knows that the trustee is entering into the K in her representative capacity, the trustee must be sued in her representative capacity, and her personal assets are not at stake.

transfer of prop. to BFP cuts off bene's interest. but if not BFP, bene. can set aside transaction.

Liability of trustee to 3rd party - torts

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

allocation of trust

trustee must be fair to all benes. unless trust states otherwise, allocated as follows:

to income benes: entitled to interest income, cash dividends, and net busi. income. But must pay interest on any loan debt, taxes or minor repairs

to remainderman: principal from the net proceeds of sale of asset, stock dividends, profit from sale of stocks. but must pay for the principal part of the loan debt and major repairs

trustee can exercise his best judgment, so can even disregard the above to follow S's intent

Modification by Settlor

maj.:Settlor can modify the trust only if the settlor expressly reserves the power to modify the trust

min. and CA: trusts are revocable unless stated otherwise

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 benes are competent and all agree to terminate and all material purposes have been accomplished

3) By operation of law. courts can terminate if purpose becomes frustrated/impossible/ illegal, or if there are changed circ's.

**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.