Term
| Intent - issues of intent |
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Definition
Capacity
Insane delusion
Fraud
Undue Influence |
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Term
| Intent - capacity - requirements |
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Definition
At the time of execution the testator must
(1) be at least 18 years old,
(2) understand the extent of her property,
(3) know the natural objects of her bounty, and
(4) know the nature of her act. |
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Term
| Intent - capacity - consequences of no capacity |
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Definition
| entire will invalid, property will pass by intestate succession |
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Term
| Intent - insane delusion - elements |
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Definition
| (1) T had a false belief; (2) that was a product of a sick mind; (3) there is no evidence to support the belief; (4) delusion must have affected T’s will |
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Term
| Intent - insane delusion - consequences |
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Definition
| Only the part of the will which was affected by the delusion is invalid. As to that part, it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, by intestate succession |
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Term
| Intent - fraud - elements |
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Definition
| (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. |
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Term
| Intent - fraud - fraud in the execution (circumstances, consequences) |
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Definition
Someone forges T’s signature OR T signs will thinking it is something else.
Consequences: the entire will is invalid. The property passes by intestate succession unless there is a prior will that was validly executed. |
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Term
| Intent - fraud - fraud in the inducement (circumstances, consequences) |
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Definition
Misrepresentation of facts that influence the testator's motivation
Consequences: denial of probate for tainted portions of will and imposition of constructive trust |
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Term
| Intent - undue influence - prima facie case - elements, consequence |
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Definition
undue influence requires that
1) the testator be susceptible to influence (psychological, financial, physical)
2) the other person have an opportunity to influence
3) the other person be actively disposed to influence, and
4) the provisions of the will be unnatural (free will destroyed)
Consequence: Only that part of the will affected by undue influence is invalid (residual devisee, heirs at law, constructive trust) |
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Term
| Intent - undue influence - presumption - elements, consequences |
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Definition
| (1) A confidential relationship exits between the T and the wrongdoer (doctor, physician, lawyer), (2) beneficiary participated in execution, (3) provisions appear unnatural |
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Term
| Intent - undue influence - CA statutory undue influence - elements, consequences |
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Definition
CA presumes provision is the product of fraud if transfer is to:
1) a person who drafted the instrument
2) a person who is related to, married to, cohabitates with, or is an employee of the drafter
3) a care custodian of a dependent adult (executed during care or 90 days after)
4) person in fiduciary relationship with T and who transcribes instrument
EXCEPT if related within 4th degree, instrument approved by court order, $k or less of >100k estate, instrument executed outside of CA by nonresident, instrument reviewed by atty
Result: person deemed to have predeceased transferor without spouse, domestic partner, or issue |
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Term
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Definition
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 – court may strike out extra words |
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Term
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Definition
1) If the wrong document is executed, the executed document is not admissible to probate because testamentary intent is lacking
2) If provision is included by mistake, some courts will strike out some or all words |
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Term
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Definition
Where a gift is made or not made due to T's erroneous belief. No relief, UNLESS
both mistake and what T would have done but for the mistake are on the face of the will (I leave John nothing because he is dead, but if he were not dead I leave him X. John gets X) |
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Term
| Mistake - involving living children (pretermission) - rule, exceptions |
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Definition
Under CA pretermitted child statutes, if a decedent fails to provide for a child born or adopted AFTER the execution of all testamentary instruments, the child receives her intestate share.
Exceptions:
1) omission intentional and intent appears on face of will or trust
2) decedent provided for transfer outside of will or revocable trust, intent shown by statements of T, amount of transfer, or other evidence
3) all of estate devised to other parent of omitted child |
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Term
| Mistake - involving living children (pretermission) - republication by codicil - what can change? |
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Definition
| Republication of a will by codicil can result in a change of a child's status as a pretermitted child |
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Term
| Mistake - involving living children (pretermission) - T believes child dead |
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Definition
| A child born or adopted before all testamentary instruments are executed and NOT provided for in any of the instruments is treated as if pretermitted if the only reason the child was not provided for is because T thought he was dead (mistake) |
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Term
| Mistake - in revocation - Dependent Relative Revocation (DRR) - rules, applies to what revocations |
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Definition
Applies when testator validly revoked a will upon mistaken belief that another disposition of property is effective, and but for this mistake he would not have revoked the will. If other disposition fails (is ineffective), revocation is set aside and original will is still in force.
Applies to revocations by physical act and subsequent instrument (even if it contains an express revocation clause)
NOTE: if by subsequent instrument, intrinsic evidence NOT admissible to show mistake |
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Term
| Components of will - integration - elements required |
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Definition
i. Intent: T must have intended for the papers in question to be part of the will;
ii. Presence: The paper must have been actually/physically present at time of execution. |
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Term
| Components of will - codicil - definition, when valid |
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Definition
A codicil is a testamentary instrument executed subsequent to the execution of the will, intended to modify, alter, or expand the will.
To be valid, the codicil must be executed with the same formalities required for the execution of a will. |
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Term
| Components of will - codicil - republication |
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Definition
A codicil republishes a will so that the will is interpreted as if it were executed on the date of the codicil.
NOTE: applies to pretermitted children and pour-over wills incorporated by reference |
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Term
| Components of will - incorporation by reference |
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Definition
Incorporation by reference reference allows the court to include non-testamentary documents in a will if
(1) they existed at the time the will was executed,
(2) the document is clearly identified in the will and
(3) T must have intended to incorporate the document into the will (usually implied) |
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Term
| Components of will - incorporation by reference - CA exception (when incorporation by reference does not work) |
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Definition
In CA, a decedent may dispose of items of tangible personal property (except money and property used primarily in a trade or business) in a writing that does not comply with the requirements for incorporation by reference if:
1) an unrevoked will refers to the writing
2) the writing is dated and is in the T's handwriting or signed by T
3) the writing describes the items with reasonable certainty |
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Term
| Components of will - facts of independent significance |
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Definition
The doctrine of facts of independent significance permits the court to fill in gaps in a will by reference to
i) acts or documents
ii) effectuated during the testator’s lifetime
iii) that have a sufficient significance apart from its impact on the will (ex: attending particular church) |
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Term
| Components of will - pour over trust - definition, when admitted? |
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Definition
A pour-over trust occurs where a testator devises all or part of his estate to a trustee of an inter-vivos trust. Courts have admitted such a trust instrument into probate – and thus effectuated its terms – under three theories:
(1) acts of independent significance,
(2) incorporation by reference, and
(3) the Uniform Testamentary Additions to Trust Act (UTATA). |
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Term
| Components of will - pour over trust - UTATA |
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Definition
| Under the UTATA, a pour-over trust may be entered into probate by statute if (1) the trust is valid, and (2) the trust was executed before or contemporaneously with the trust instrument. |
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Term
| Requirements for execution of will - traditional formalities |
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Definition
i. The will must be in writing
ii. The will must be signed by the T, or by another person in his presence and at his direction, or by a conservator
iii. Signing or acknowledgment must be done in the JOINT presence of 2 witnesses who sign the instrument during T's lifetime
iv. The witness must understand that the instrument they sign is T’s will. |
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Term
| Requirements for execution of will - CA clear and convincing standard |
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Definition
A will of a decedent dying on or after January 1, 2009 that is not executed in compliance with the traditional witnessing requirements may be admitted to probate if
i) the proponent establishes
ii) by clear and convincing evidence
iii) that at the time the testator signed the will he intended te will to constitute his will |
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Term
| Requirements for execution of will - qualifications of witness, interested witnesses |
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Definition
A witness must be competent at the time the will is executed.
If the witness has a beneficial interest in the will, his provision will be purged. In CA, this raises a presumption of wrongdoing that if not overcome, the beneficiary-witness will only get what he would have been given in intestacy. |
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Term
| Requirements for execution of will - CA considerations |
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Definition
1) WITNESSES (not testator) do not have to sign in presence of each other or testator
2) testator does not have to tell witnesses "this is my will"
3) signing anywhere by T or witnesses OK |
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Term
| Holographic wills - elements |
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Definition
Under CA law, a holographic (handwritten) will must be
1) signed by the testator, and
2) the material provisions of the will must be in the testator's own handwriting |
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Term
| Holographic wills - when undated |
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Definition
A holographic will need not be dated to be valid.
However, where an undated holograph is inconsistent with the provisions of another will, the undated holograph is invalid to the extent of the inconsistency unless it can be established that the undated will came after the other will. |
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Term
| Holographic wills - when there is a question of capacity |
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Definition
| If a holographic will is undated and it is established that the Testator lacked capacity during any point when the holograph could have been executed, the undated holograph is invalid unless it can be established that the Testator had capacity when she executed the will. |
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Term
| Choice of law - will executed in another state but T dies in CA |
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Definition
Under California law, where a domicillary dies in California, but executed a will in another state, that will can be admitted into probate in California only if it complies with the formalities of execution of:
1) CA law
2) the law of the place where it was executed
3) the law of the place of T's domicile at the time of execution |
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Term
| Holographic wills - testamentary intent - how to prove? |
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Definition
| For holographic wills, testamentary intent can be proven by extrinsic evidence (statements, series of letters). It does not have to be explicit on the face of the will. |
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Term
| Revocation - by physical act |
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Definition
1. Will must be burned, torn, cancelled (draw lines through words), destroyed or obliterated
2. T must have the simultaneous intent to revoke (act and intent must coincide)
3. The act must be done by the T, or by someone in the T’s presence and at his direction. |
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Term
| Revocation - cancellation and interlineation - effect on underlying provision |
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Definition
Generally cancels the changed provisions if the material provisions are not in T's own handwriting (crossing out provision in typed will and writing in different amount).
However, what has been cancelled may be saved by DRR (as long as new gift > cancelled gift). |
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Term
| Revocation - cancellation and interlineation - amount |
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Definition
| You cannot increase a co-beneficiaries gift by cancellation |
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Term
| Revocation - duplicate original wills |
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Definition
| If T, or someone in T’s presence and at his direction, revokes by physical act one of the duplicate originals, then the other duplicate original is also revoked as a matter or law. |
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Term
| Revocation - mutilated wills found @ T's death |
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Definition
| If a will is found in a mutilated condition @ T's death, and when last seen it is in T's possession, there is a rebuttable presumption that T mutilated the will with the intent to revoke it. |
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Term
| Revocation - express, implied |
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Definition
A will may be expressly revoked by a later will or codicil executed with the formalities required for a valid will (doesn't matter if holograph).
A will may be revoked by implication from the terms of a subsequent instrument by superseding or nullifying inconsistent terms. |
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Term
| Revival - by physical act, by subsequent instrument |
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Definition
A will that has been revoked is revived by physical act only if extrinsic evidence can show that T manifests an intent to revive the will.
A will that has been revoked is revived by a subsequent instrument only if it appears by the terms of that subsequent instrument that T intended the revoked will to be back into effect (extrinsic evidence cannot be used). |
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Term
| Revocation by operation of law - omitted child |
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Definition
If a decedent fails to provide for a child born or adopted after the execution of all testamentary instruments (will, codicil, revocable intervivos trust created by decedent during lifetime) , the child received her intestate share UNLESS
1) failure to provide was intentional by D (intention appears in testamentary instrument)
2) D evidences a plan that the child's other parent would take financial care of all children they have together (D gives all of his estate to parent of omitted child)
3) D provided for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any testamentary provision (trust for child to replace will) |
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Term
| Revocation by operation of law - omitted spouse - general rule |
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Definition
| If spouse survives testator and is not provided for in spouse's will or revocable trust, the surviving spouse may take in addition to share of CP and quasi-CP, her intestate share of the decedent's estate (not to exceed 1/2 the value of the decedent's SP in the estate). |
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Term
| Revocation by operation of law - omitted spouse - how distribution works |
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Definition
| Share is first taken from portion of estate not disposed of by will or trust, and then gifts to others are revoked or abated in proportion to the value they may receive under the trust. |
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Term
| Revocation by operation of law - omitted spouse - exceptions |
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Definition
Omitted spouse does not take if:
(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. |
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Term
| Revocation by operation of law - omitted spouse - waiver |
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Definition
Waiver must be
1) in writing,
2) signed by the waiving spouse before or during marriage,
3) contain a full disclosure of D's finances (or at least D should have had knowledge), AND
4) the waiving spouse must have independent legal counsel
ALSO: waiver must not be unconscionable |
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Term
| Revocation by operation of law - final dissolution of marriage or domestic partnership |
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Definition
| Dissolution of property to a former spouse in a will executed before divorce / annulment is revoked unless the will provides otherwise |
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Term
| Classification - specific legacy or devise |
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Definition
| a gift of a particular object distinct from all other objects in the T's estate (3 karat diamond ring, gift of specific stock, or privately held stock) |
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Term
| Classification - general legacy or devise |
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Definition
A gift of a general economic benefit, payable out of assets of the estate
Ex: "A gift of 100 shares of GM stock", NOT "A gift of MY 100 shares of GM stock" |
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Term
| Classification - demonstrative legacy |
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Definition
a general legacy payable first from particular property, and then out of the estate if that property is insufficent
("$1000 to A, payable from the same of GM stock") |
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Term
| Classification - residuary gift |
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Definition
| what remains after paying debts and specific, general, and demonstrative gifts |
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Term
| Classification - ademption by extinction (CA rule) |
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Definition
Under the common law doctrine of ademption, where the testator makes a gift of specific property, and that property is not held by the testator at his death, the gift is deemed revoked, and the devisee will take nothing.
However, California has modified the ademption doctrine, so that ademption is dependent on the testator’s intent to adeem at the time that he disposes of the specific property. |
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Term
| Classification - ademption by extinction (CA rule) - securities |
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Definition
transfer of securities is NOT extinguished if securities arise out of a specific gift of securities:
stock splits and dividends OK
stock gained by merger / reorganization OK |
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Term
| Classification - ademption by extinction (CA rule) - property rights |
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Definition
| net sale price or insurance proceeds of specific gift of property, foreclosure proceedings - all OK under adeption by extinction |
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Term
| Classification - ademption by satisfaction - general rule |
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Definition
| A general or demonstrative gift is satisfied IF the testator transfers property to the beneficiary, subsequent to execution, with the INTENT to satisfy the gift |
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Term
| Classification - ademption by satisfaction - satisfaction |
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Definition
| In California, satisfaction occurs only if the testator's intent is expressed in a contemporaneous writing signed by either the testator or the donee |
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Term
| Classification - ademption by advancement - general rule |
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Definition
| An inter-vivos gift to an heir apparent is deducted from the donee's intestate share if the donee's intent is expressed in a written document executed by donor and donee |
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Term
| Classification - ademption by satisfaction and advancement - how to value if not in cash? |
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Definition
| If the satisfaction or advancement is not made in cash, look to the value expressed in the contemporaneous writing. Otherwise, property is valued at fair market value at the time the transferee came into possession of the property. |
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Term
| Contracts related to will - formalities |
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Definition
Contract can be established by one of the following:
1) the will or other instrument (e.g., a trust) states the material provisions of the contract
2) an express reference to the will coupled with extrinsic evidence of the terms (including oral testimony, no SoF problem)
3) a writing signed by the decedent evidencing a contract
4) clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity (estoppel)
5) clear and convincing evidence of an agreement between decedent and a third person for the benefit of the claimant that is enforceable in equity (estoppel) |
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Term
| Contracts related to will - effect of breach in general |
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Definition
| If a contract concerning a will is broken, an action for damages against the testator's estate or to impose a constructive trust on the testator's beneficiaries may lie, but any duly executed will MUST be probated |
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Term
| Joint will - definition, effect of person dying |
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Definition
| A joint will is the will of 2 or more persons executed with the intent to serve as the will of each. Provisions do not have to be reciprocal. The will is probated each time a person in the joint will dies. |
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Term
| Mutual or Reciprocal will - definition |
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Definition
| separate wills that contain similar or reciprocal provisions |
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Term
| joint and mutual wills - remedy for breach of K when first party dies in compliance - when there is wrongful inter vivos transfer |
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Definition
| Before B dies, the contractual beneficiaries can set aside B's inter vivos transfers in fraud of the contract |
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Term
| joint and mutual wills - remedy for breach of K when first party dies in compliance - when there is NO wrongful inter vivos transfer |
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Definition
| The contractual beneficiaries cannot bring an action against B during his lifetime for revoking his will because they have not been damages |
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Term
| Spouse protection - widow's election |
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Definition
If a testator attempts to dispose of more than 1/2 CP or 1/2 Quasi-CP in a will, the survivor may choose to either:
1) accept the gift in the will instead of his or her statutory right to 1/2 CP and 1/2 Quasi-CPP, OR
2) renounce the benefits in the will and claim the 1/2 CP and 1/2 Quasi-CP |
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Term
| Spouse protection - inter vivos transfer of quasi-CP |
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Definition
| A surviving spouse can set aside transfers during marriage of the 1/2 Quasi-CP UNLESS the transfer is illusory because the spouse retained some interest or control over the property (ownership interest, use, or co-tenancy) |
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Term
| Prohibited beneficiaries - slayers |
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Definition
| A person who feloniously and intentionally kills the decedent is NOT entitled to any property or benefit under the will. The killer is deemed to have predeceased the decedent, and the anti-lapse statute does not apply |
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Term
| Succession - community property |
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Definition
| Surviving spouse or domestic partner receives decedent's 1/2 of the CP and 1/2 of the quasi-CP |
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Term
| Succession - separate property - spouse or domestic partner survives |
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Definition
1. If D leaves not issue, parents, siblings, etc., → all to surviving spouse
2. If D is survived by one child, or issue of a predeceased child → ½ to surviving souse and ½ to child or child’s issue.
3. If D is survived by 2 or more children, or issue of predeceased children → ⅓ to surviving spouse and ⅔ to the children or their issue.
4. If D is survived by parents or parent’s issue (siblings) → ½ to surviving spouse, ½ to parent or their issue |
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Term
| Succession - separate property - spouse or domestic partner does not survive (order) |
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Definition
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. |
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Term
| Succession - rules for how issue take, presumption |
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Definition
i. Issue of the same degree (all children) take “per capita,” or equally and in their own right
ii. Issue of unequal degrees take “per capita with representation.” (give same share to everyone at same level who is living AND deceased members who leave issue)
iii. If will does not say, presumption is per capita with right of representation |
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Term
| Succession - simultaneous death (uniform simultaneous death act) |
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Definition
| When two people die at the same time, and it cannot be established by clear and convincing evidence that one survived the other, the property of each person will be treated as if that person had survived the other [gift will lapse or be distributed under anti-lapse statute) |
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Term
| Succession - per capita with representation |
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Definition
| each generation takes equally at 1) the first level someone is living AND 2) to deceased members of that generation who leave issue |
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Term
| Succession - per stirpes distribution |
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Definition
| distribution is made at the first generation, even if everyone is dead, so long as they left issue. The issue then step into the shoes of the predeceased ancestor |
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Term
| Succession - adopted children - inheritence |
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Definition
| adoptive children inherit from adoptive parents and from their relatives, and vice versa |
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Term
| Succession - adopted children - when relationship with natural parents severed |
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Definition
| adoption severs the relationship, EXCEPT if adoption is by step-parent, or after death of either natural parents |
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Term
| Succession - non-marital children (CA rule) |
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Definition
| In CA, marital status of parents is irrelevant - the key is whether a parent-child relationship existed by mother giving birth, and by father acknowledging child by marriage to mother or court degree of paternity. |
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Term
| Posthumous child - definition, how they take |
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Definition
| This is a child conceived during lifetime of intestate or testator, but born after their death. They are deemed heirs of the intestate and beneficiaries of T's will. |
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Term
| Lapse rule - rule, effects |
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Definition
| Under the common law lapse rule, if a devisee died before the testator, his gift was said to have lapsed – or failed. If there is an alternative gift, such gift takes effect. However, if there is no alternative gift the lapsed gift goes to the residuary estate. |
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Term
| Anti-lapse rule - rule, effects |
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Definition
California, like most states, has enacted an anti-lapse statute to avoid the harsh affects of the lapse rule. Under California’s anti-lapse statute, where the pre-deceased devisee was a blood relative of the testator, the gift does not automatically fail. Instead, the issue of the pre-deceased devisee may step into the shoes of the devisee, and thus take by representation.
However, the issue of the pre-decease devisee do not take if the will expresses a contrary intention or substitute disposition. |
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Term
| Lapse rule - gifts to classes |
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Definition
| In CA, when there is a gift to a class, members of a class who predecease the testator are protected by the anti-lapse statute |
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Term
| Distribution - after-acquired property |
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Definition
| A will passes all property the T owned at death, including after-acquired property |
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Term
| Distribution - stock increase in testator's lifetime |
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Definition
| Stock dividends or splits paid during T's lifetime go to the beneficiary if the stock is owned by T at T's death |
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Term
| Distribution - increase after testator's death and during probate - specific devises, general devises |
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Definition
Specific devisees - all increases go to beneficiary
General devisees - do not receive any increase, EXCEPT increase paid on beneficiaries' gift between death and distribution |
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Term
| Will substitutes - gift causa mortis |
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Definition
| A gift motivated by fear of impending death is perfected only on delivery that is actual, symbolic (a writing), or constructive (a key that unlocks a box where corpus is located), |
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