Wills

Capacity

-At the time of execution

(1) 18 years old
(2) knowledge of property
(3) knowledge of natural objects of her bounty
(4) nature of her act

-Lowest level of capacity known to the law

Consequences of Lack of Capacity

(1) ENTIRE will is invalid
(2) Intestate succession or prior will

Insane Delusion

-At the time of execution

(1) T had false belief
(2) That was a product of a sick mind
(3) No evidence to support belief
(4) Delusion affected T's will

Consequences of Insane Delusion

(1) ONLY the PART of the will that was affected is invalid
(2) Residue or, if delusion affected residue, intestate succession

4 Concepts of Intent

(1) Capacity
(2) Insane Delusion
(3) Fraud
(4) Undue Influence

Fraud: Elements

(1) Representation
(2) Material fact
(3) Known to be false
(4) Intent to induce
(5) Actual inducement

Fraud: Types

(1) Inducement
(2) Execution
(3) Preventing Revocation

Consequences of Fraud in Execution

ENTIRE will is invalid

-T was defrauded into signing/creating the will
-T had NO intent to create a will

Consequences of Fraud in Inducement

ONLY the PART of the will affected by the fraud is invalid

-Fraud affected the content of T's will
-T did not intent those terms/individuals to be in his will

Remedy for Fraud in the Inducement

(1) Residuary
(2) Intestate Succession
(3) Constructive Trust

-Court's election; Furtherance of justice

Consequences of Fraud in Inducement

Court will NOT probate the will

Remedy: Constructive Trust for intended beneficiary

Undue Influence: Types

(1) Prima Facie Case
(2) Presumption
(3) Statutory

Elements of Undue Influence: Prima Facie Case

(1) Susceptibility of T
(2) Opportunity/Access of B
(3) Active Participation by B
(4) Unnatural Distribution of T's Will

Elements of Undue Influence: Presumption

(1) Confidential Relationship (any)
(2) Active Participation by B
(3) Unnatural Distribution of T's Will

Statutory Undue Influence

CA invalidates donative transfers to:

(1) Drafter of will

(2) Relative or spouse of the Drafter

(3) Fiduciary who can Transcribe the will (or cause it to be transcribed)

(4) "Care Custodian" of a "Dependent Adult"
-18 and mentally handicapped OR
-65+

NOTE: Exceptions

Statutory Undue Influence: Exceptions

(1) B is Related to or Spouse of T

(2) Independent Attorney Reviews

(3) Court determines no wrongdoing
-Clear and convincing evidence
-NOT an exception if Drafter is B

Consequences of Undue Influence: ALL

ONLY the PART that was affected is invalid

Remedy for Undue Influence: ALL

Prima Facie Case OR Presumption
(1) Residue
(2) Intestate Succession
(3) Constructive Trust

Statutory
(1) Gift shall not exceed transferee's intestate share
(2) Remainder goes to Residue OR Intestate Succession

*Court's Election; Interest of Justice

6 Concepts of Mistake

(1) Mistake in content
(2) Mistake in execution
(3) Mistake in inducement
(4) Mistake in description (ambiguity)
(5) Mistake in the validity (DRR)
(6) Mistake involving living children

Mistake in Content: Remedy

-Wrong Beneficiary or Gift

(1) Omission
-Court will not change the will
-Exception: DRR and Omitted Children

(2) Addition
-Court may strike out addition

Mistake in Execution: Remedy

(1) Signs Wrong Document (e.g., power of attorney)
-No will exists, no intent

(2) Signs Spouse's Will (Reciprocal Will)
-Reformation, swap H for W (visa versa)

Mistake in Inducement: Remedy

-Erroneous Belief (not rising to the level of insane delusion)

-No Relief

-UNLESS: Will explicitly states how distribution would have been different but for the mistake

Mistake in Description: Remedy

(1) Latent
-Allow extrinsic evidence to determine
-CL did no allow extrinsic

(2) Patent
-Allow extrinsic evidence to determine

DRR

(1) T revokes his will or a portion

(2) in the mistaken belief that

(3) a SUBSTANTIALLY SIMILAR will or codicil is valid

(4) Revocation of 1st is deemed dependent on #2 being valid

(5) If #2 is invalid, #1 is still in effect

How to probate a lost or destroyed will?

-DRR

ANY witness to the will can testify to its contents

-Need not be the attesting witness

Pretermitted (Omitted) Child: Remedy

(1) Child born AFTER execution of ALL testamentary instruments
-Child deemed "Pretermitted" and takes intestate share

(2) Child born BEFORE execution of testamentary instrument
-Child deemed disinherited and takes nothing
-UNLESS: T did not know of the child's existence. Then give child intestate share.

5 Concepts of Will Components

(1) Integration
(2) Incorporation by Reference
(3) Facts of Independent Significance
(4) Written disposition of limited tangible personal property
(5) Pour-over wills

Integration: Elements

(1) Intent
-T must have intended to integrate the documents

(2) Presence
-document to be integrated must have been physically present at time T executed his will

NOTE:
Stapled together or sentences that continue that continue from page to page help to establish what is to be integrated

Incorporation by Reference: Elements

(1) Document or Writing
-Need not be valid in its own capacity (e.g., valid K)

(2) Existence
-In existence at time of execution

(3) Clearly Identified in the Will
-Will references the document

(4) Intent to incorporate

NOTE:
Establishing elements 1-3 will infer 4

Facts of Independent Significance

Reference in a will to something that would have existed without the existence of the will is independently significant.

Evidence of that fact will be admitted as parol evidence to clarify the will.

§ 6132: Written Disposition of Limited Tangible Personal Property: Elements

(1) Death after 1/1/07

(2) Writing must be:
-Referenced in the will;
-Dated; AND
-Either signed or handwritten by T

(3) Writing must describe items and beneficiaries w/ reasonable certainty

(4) Tangible personal property (not $) ≥$25,000 total and ≥$5,000 per item

NOTE: The writing may be executed before or after the will

§ 6132: Miscellaneous

-If one of the items to be disposed of exceeds $5,000, ONLY that is excluded from § 6132 and its value is NOT included in the $25,000 total

-If a beneficiary to a § 6132 document predeceases T, the gift LAPSES (not subject to ant-lapse?) unless the writing describes otherwise

Pour-Over Wills

Defined:
Will that devises assets to an inter vivos trustee to be held in trust

Issues:
Who is the beneficiary
Who is the trustee
What are the terms of the trust

How to effectuate a Pour-Over Will

(1) Incorporation by Reference
-go though elements

(2) Acts of Independent Significance
-go though elements

(3) Uniform Testamentary Additions to Trusts Act (UTATA)
-Valid Trust + in Existence at time will is executed = Valid Will

NOTE: Highly unlikely that you will use §6132 (don't discuss)

3 Concepts of Attested Will

(1) Elements for an attested will
(2) Interested witness problems
(3) Conditional wills

Attested Will: Elements

(1) Written

(2) Signed
-Nickname allowed
-3rd parson in T's presence at his direction if T's is incapacitated
-Conservator pursuant to court

(3) Witness of T's signature by 2 disinterested witnesses
-Acknowledge signature in presence of witnesses
-Present at the same time

(4) Witnesses sign during T's life

(5) Witnesses understand what they are signing

"Clear and Convincing" Exception
To elements 3, 4, and 5 of an attested will

IF:

(1) Death on or after 1/1/09
(2) Clear and Convincing Evidence that
(3) T intended the will to constitution his will

Than:

(1) Witnesses NOT required

However:

(1) Will must be written
(2) T must sign it

Do the witnesses to an attested will have to sign in the presence of anyone?

NO, not the other witness, not T.

It is T who must sign in the presence of BOTH the witness, at the same time.

Failure to Comply w/ Attested Will Formalities:

(1) Death BEFORE 1/1/09

(2) Death AFTER 1/1/09

(1) BEFORE 1/1/09
-Absent Fraud or Mistake
-Argue "Substantial Compliance"

(2) AFTER 1/1/09
-Argue above AND
-Clear and Convincing Test

Conscious Presence Test

T signs or acknowledge within the witnesses hearing and the witnesses know what is being done.

-"Within earshot"

What happens if there is an interested witness?

NOTHING IF there are 2 other disinterested witnesses

IF NOT:
(1) There is a presumption of wrongdoing
(2) If not rebutted
(3) Interested witness takes ONLY up to the amount of intestate share
(4) If no intestate share, then nothing

3 Concepts of Holographic Wills

(1) Elements for a valid holographic will
(2) Testamentary intent
(3) Dates

Holographic Will: Elements

(1) Signed by T

(2) Material Provisions in T's handwriting
-gifts made
-beneficiaries

Holographic Will: Intent

Extrinsic evidence may be admitted to establish the intent of T

-Watch for T simply naming B and gifts
-Watch for a series of documents

Holographic Will: Dates

Dates are NOT required for holographic wills

-Watch for inconsistent wills
-Watch for capacity issues

3 Concepts of Codicils

(1) Definition
(2) Republication
(3) Revocation

Codicil: Defined

Testamentary instrument that complies with probate code formalities and:

(1) modifies;
(2) amends; or
(3) revokes

an existing will

Republication by Codicil

A will's date becomes that of the most recent codicil.

Important for:
(1) Incorporation by reference (pour-over wills)
(2) Omitted spouse or child

Codicil and Pretermission (omitted child)

-If Child is born AFTER the creation of a will.
-Then Child is Pretermitted

-If codicil is created AFTER birth of Child
-Then there is no pretermission problem for 2 reasons:
(1) Will is "republished" to the date of the codicil
(2) Codicil is a testamentary instrument that came after Child

Discuss BOTH

Revocation by Codicil

(1) Revocation of codicil
-Presumption that ONLY codicil is revoked

(2) Revocation of will
-Presumption that will AND codicils are revoked

4 Concepts of Revocation by Physical Act

(1) Elements
(2) Cancellation and Interlineations
(3) Duplicate Wills
(4) Mutilated Wills

Revocation by Physical Act: Elements

(1) Burned, torn, cancelled, destroyed, or obliterated

(2) Simultaneous INTENT to revoke

(3) Act by T or someone in T's presence at T's direction

Revocation by Cancellation and Interlineation

Handwritten Alterations to a:

(1) Typed Will (attested)

(2) Handwritten Will (holographic)

(1) Typed Will (attested)
-Any cancelation (striking out) to the original will is a VALID revocation
-HOWEVER, any handwritten addition is NOT valid b/c not a valid holographic or attested codicil (lack of all material terms)
-BUT if the interlineation gives MORE to B, use DRR to give B the lesser, original, amount
-IF the interlineation gives LESS to B, B gets nothing b/c testator intent

(2) Handwritten Will (holographic)
-Any cancelation (striking out) to the original will is a VALID revocation
-AND, any handwritten addition is also VALID b/c valid holographic codicil

T: "I give my farm to A and B."

If T cancels his distribution to A, does B get the whole farm?

NO

B still gets 1/2
A gets nothing
Residue gets 1/2

Revocation of a duplicate

Revocation of a duplicate will is treated the same as revocation of the original will.

NOTE:
A duplicate ≠ a copy

2 Concepts of Revocation by Subsequent Instrument

(1) Manner of revoking
(2) Revival

Manner of revoking by instrument

(1) Express
-"I hereby revoke all my prior wills"

(2) Implied
-Distribution of all T's estate

Revival

Will #1 is revoked by Will #2
Will #2 is revoked by physical act
Is Will #1 Revived?

Will #1 is revived ONLY if T manifested an intent to revive

While tearing up Will #2 T states, "Now will #1 is back in effect."

However, it must be very clear.

Revival

Will #1 is revoked by Will #2
Will #2 is revoked by Codicil
Is Will #1 Revived?

Will #1 is revived ONLY if the the terms of the codicil make it clear that T manifested an intent to revive Will #1

4 Concepts of Revocation by Operation of Law

(1) Omitted Child
(2) Omitted Spouse
(3) Omitted Domestic Partner
(4) Final dissolution of marriage or domestic partnership

Omitted Child: Defined

(1) A child born or adopted

(2) After ALL testamentary instruments
-Will, codicil, or revocable intervivos trust

(3) And NOT provided in any instrument

Omitted Child: Consequences

(1) Receives intestate share
(2) And keeps all assets held in any intervivos trust

EXCEPTIONS
(1) Intentional omission
(2) Most assets go to parent
(3) Outside instrument

Omitted Spouse: Defined

(1) A surviving spouse who married T

(2) After ALL testamentary instruments
-Will, codicil, or revocable intervivos trust

(3) And NOT provided in any instrument

Omitted Spouse: Consequences

(1) Receives intestate share
(2) And keeps all assets held in any intervivos trust

EXCEPTIONS
(1) Intentional omission
(2) Outside instrument
(3) Valid Pre/Post Nuptial

Valid Pre/Post Nuptial

(1) Writing
(2) Signed
(3) Full Disclosure of Finances
(4) Independent Counsel

If No Counsel
(1) Knew or should have known of finances;
OR
(2) Fair

EXCEPTION
-Never enforceable if UNCONSCIONABLE

Does legal separation revoke testamentary devises?

NO

ONLY Divorce or Termination of Domestic Partnership

When does divorce NOT revoke a devise?

(1) Remarries
OR
(2) Expressly stated in devise

4 Concepts of Ademption

(1) Classification
(2) Ademption by Extinction
(3) Ademption by Satisfaction
(4) Advancements

Classifications of Gifts

(1) Specific
(2) General
(3) Demonstrative (hybrid)
(4) Residue

What types adeem by extinction?

ONLY
Specific Gifts

Ademption by Extinction

Common Law:
-If specific gift was not in T's estate at death, it failed (adeemed)

California:
-Look to T's intent

NOTE:
If there is ambiguity as to whether the gift is specific or general, courts will avoid the harsh result of ademption by extinction, which only applies to specific gifts, and will consider the gift general, and allow alternate distribution.

Ademption by Extinction: Tracing

If a specific gift is sold during T's lifetime and the proceeds can be directly traced into another asset or an account, make a tracing argument.

Ademption by Extinction: General v. Specific

Because ONLY specific gifts adeem, make an argument that a gift is general.

Ademption by Satisfaction: 4 ways to prove

If T gave B part of B's gift during T's lifetime, B's gift will be reduced IF:

(1) Will provides for a deduction of intervivos gifts
(2) T declares in a contemporaneous writing
(3) B acknowledges in a writing
(4) Specific gift was given

Advancements: 2 ways to prove

If Intestate gave Heir part of B's intestate share during Intestate's lifetime, Heir's intestate share will be reduced IF:

(1) Intestate declares in a contemporaneous writing
(2) Heir acknowledges in a writing

Ademption by Satisfaction

v.

Advancement

(1) Ademption by Satisfaction
-Applies to Wills
-If B predeceases T, B's issue lose out on the devise

(2) Advancement
-Applies to intestate succession
-If heir-apparent predeceases Intestate, HA's issue do NOT lose out on their intestate share

4 Concepts of Contracts Affecting Wills

(1) Requirements
(2) When the COA accrues
(3) Joint and Mutual Wills
(4) Remedies Available to Promisee

K Not to Revoke a Will: Alternative Methods of Creation

(1) Will states the material provisions of the K

(2) Will makes express reference to the K

(3) Writing signed by T evidencing the K

(4) Clear and convincing evidence of agreement that is enforceable in equity

K Affecting a Will: When does a COA accrue?

When T dies

UNLESS:
(1) T engaged in fraud; and
(2) Irreparable injury would result
-Injunction

Does the creation of a Joint or Mutual Will create a presumption of a contract not to revoke?

NO

However, extrinsic evidence may be admitted to establish a K not to revoke.

What is the remedy for the breach of a K affecting a will?

(1) Damages against T's estate
(2) Specific Performance
(3) Constructive trust

-All K remedies

3 Concepts of Restrictions on Dispositions

(1) Types of Property
(2) Spousal/Domestic Partner Protection
(3) Unworthy Heirs/Beneficiaries

Classification of a Married Person's Property

(1) CP
(2) SP
(3) QCP

How does the definition for QCP differ between:

(1) Divorce

(2) Probate

(1) Divorce
-All real property wherever located

(2) Probate
-Real property located in CA

Therefore, the acquiring spouse can dispose of ALL real "QCP" that is not located within CA.

Until the acquiring spouse DIES, the NON-acquiring spouse has merely an expectancy interest, NOT a property interest, in QCP. Therefore...

if the NON-acquiring spouse predeceases the acquiring spouse, the non-acquiring spouse CANNOT dispose of any QCP.

How can property be devised via testamentary instrument if:

(1) SP
(2) CP
(3) QCP

(1) SP
100%

(2) CP
50%

(3) QCP
50% by acquiring spouse
0% by non-acquiring spouse

Widows Election Will

If T attempts to dispose of more than 1/2 of the CP or QCP the surviving spouse may elect to:

(1) Take under the will

(2) Take against the will

Determining whether an Heirs/Beneficiaries has killed T.

(1) Conviction is conclusive

(2) Probate court will determine by preponderance

Consequences of determining a FELONIOUS and INTENTIONAL killing

(1) by B/Heir of T/I

(2) by JT of other JT

(3) by B of Insured

(1) by B/Heir of T/I
-Killer does not take
-Issue do not take (anti-lapse not applicable)

(2) by JT of other JT
-Killer keeps 1/2 interest
-Killer does not take other 1/2 (no right of survivorship)

(3) by B of Insured
-Killer does not take

6 Concepts of Intestate Succession

(1) Surviving spouse
(2) All others
(3) Per Capita/Per Stirpes
(4) Adopted Children
(5) Non-Marital Children
(6) Half-Bloods

Intestate Share of Surviving Spouse:

(1) CP/QCP
100%

(2) SP
-100% if decedent had no issue, parent, B/S, or N/N
-50% if decedent left parent, B/S, or N/N
-50% if decedent had 1 issue or issue of 1 issue
-33% if decedent had 2+ issue or issue of 2+ issue

Intestacy Chart for Non-Married Decedents

(1) Issue
(2) Parents
(3) Issue of Parents
(4) Grand-Parents
(5) Issue of Grand-Parents
...
Don't worry about the rest

Distribution of Intestate Share

Per Capita w/ Representation

v.

Strict Per Stirpes

(1) Per Capita w/ Representation

-Go to first generational line w/ living heirs

-Give proportional share to all living and deceased w/ issue

-Issue of deceased share deceased proportional share

(2) Strict Per Stirpes

-Go to first generational line w/ living heirs OR deceased w/ issue

-Give proportional share to all living and deceased w/ issue

-Issue of deceased share deceased proportional share

Adopted Children, 1/2 Bloods, and Non-Marital Children

ALL are treated the same as true children.

NOTE:
Stepchildren and Foster Children require analysis

Step and Foster Children Will Take An Intestate Share IF:

(1) The relationship began at the child's minority

(2) Continued throughout the parent's lifetime

(3) Would have adopted BUT FOR legal barrier
-Clear and Convincing Evidence
-E.g., bio parent would not consent

Equitable Adoption

A non-child will take if

Parties hold themselves out as parent/child

3 Concepts of Who Can Take

(1) Posthumous Children

(2) Lapse and Anti-Lapse

(3) Simultaneous Death

Right to Inherit: Posthumous Children

Take EXACTLY the same as children

-Conceived before T's death
-Born after T's Death

Anti-Lapse

A gift to B will not fail (lapse) if B predeceased T if...

(1) B was kindred to T;

OR

(2) B was kindred to T's surviving, deceased or former spouse

AND

(3) B leaves issue

Does anti-lapse apply if B was the spouse?

NO.

The Spouse is NOT kindred.

Does Anti-Lapse apply to class gifts?

YES.

Therefore, if a class member is kindred (e.g., grandchildren), and the class member predeceases T and leaves issue, the issue will take.

Simultaneous Death:

(1) Wills

(2) Intestacy

(3) Joint Tenancy

(4) Life Insurance Policy

(1) Wills
-Clear and convincing evidence that
-B survive T by ANY amount of time

(2) Intestacy
-Clear and convincing evidence that
-Heir survive Intestate by at least 120 hours

(3) Joint Tenancy
-Clear and convincing evidence that
-JT survive other JT by ANY amount of time

(4) Life Insurance Policy
-Clear and convincing evidence that
-B survive Insured by ANY amount of time

If NOT, (for all), B/Heir/JT is deemed to have predeceased.

5 Concepts of What a B Takes

(1) After Acquired Property
(2) Increases During T's Life
(3) Increases After T's Life
(4) Abatement
(5) Exoneration

After Acquired Property

Property acquired after T executes his will

-All property of T will be disposed of via T's will, regardless of when acquired.

Increases in Value During T's Life:
Stock Dividends & Splits

Increases go to B if the increase was due to an action of the corporation and NOT an independent action of T.

Increases in Value After T's Life:
Stocks, Rents, and Interest

B entitled to increases, splits, rents, stock dividends, etc.

UNLESS
-General Gift of $ (e.g., B gets $10k)
-Unless it takes more than 1 year to get B his money.

Order of Abatement for:

(1) Omitted Spouse or Child

(2) Debt

(1) Omitted Spouse or Child
1st property not passing via instrument
2nd equally taken from ALL B's
-unless abating from specific gift is against T's obvious intent

(2) Debt
1st property not passing via instrument
2nd residue
3rd general gifts to non-relatives
4th general gifts to relatives
5th specific gifts to non-relatives
6th specific gifts to relatives

Exoneration

Must funds from the estate be used to extinguish debt on property before it passes?

CL: YES, if T was personally liable

CA: NO, unless VERY specifically directed

Gifts Causa Mortis: Elements

(1) Gift made in contemplation of IMMANENT death.
(2) Personal Property
(3) Delivery (actual, symbolic, or constructive)
(4) If Donor Survives, gift is REVOKED

What is not "tangible personal property" for purposes of §6132 (incorporation by reference of after created document)

(1) Cash
(2) Stock
(2) IP (c)

What presumption arises against an interested witness?

(present at the signing of T)

(1) duress;
(2) menace;
(3) fraud; and
(4) undue influence

If there is an external document, one not contained w/i the will, that you seek to probate, what 4 analyses should you use?

(1) Integration

(2) Incorporation by reference
-§6132 variation

(3) Acts of independent significance

(4) Codicil

If you see "Null and Void" written across a testamentary instrument, what 2 analyses should you use?

(1) Revocation by Physical Act- Cancellation

(2) Holographic Codicil
-handwritten
-signed

Will the revocation of a codicil that revoked a disposition in a prior will REVIVE that prior disposition?

CL- YES

Modernly- Look to the intent of T

"My shares of stock"

Specific or General Gift?

Almost always considered specific

Therefore, subject to ademption by extinction.