Legal Three

Wills Outline for the California Bar Exam

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WILLS

  1. Intent – T must have intent to make a valid will – crts consider capacity, insane delusion, fraud, and undue influence

    1. Capacity

      1. At the time of execution, T must:

        1. Be 18

        2. Be able to understand extent of her prop

        3. Know the natural objects of her bounty (spouse, issue, parents, and those whose interests are affected)

        4. Know the nature of her act (that she is executing a will, but need not know legal technicalities)

      2. Consequences of No Capacity – entire will is invalid, prop passes by succession

        1. Exception – if T had a valid prior will that was purportedly revoked by second will (the one T did not have capacity for), the 1st doc will be probated b/c if T did not have capacity, #2 could not have revoked #1

      3. Note – mere appt of conservator or mental disorder is not alone sufficient to show incapacity

    2. Insane Delusion – will can be attacked for lack of intent if:

      1. At time of execution, T had:

        1. A false belief,

        2. That was a product of a sick mind,

        3. There is no evidence to support the belief, and

        4. The delusion affected T’s will

      2. Consequences – only part of will that was affected by the delusion is invalid and it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, by succession

    3. Fraud

      1. Elements:

        1. Representation,

        2. Of material fact,

        3. Known to be false by the wrongdoer,

        4. For the purpose of inducing action or inaction, and

        5. In fact induces the action or inaction desired

      2. Three types:

        1. Fraud in the Execution – someone forges T’s sig to a will or T is given a doc to sign that purportedly is not a will, but is

          1. Consequences – entire will is invalid and the prop passes by succession, unless there was a prior will validly executed

        2. Fraud in the Inducement – the wrongdoer’s reps affect the contents of T’s will

          1. Consequences – only the part of the will affected by the fraud is invalid – crt can give the prop to the residuary, or if there is no residue to the heirs at law by succession, or create a CT

        3. Fraud in Preventing T from Revoking – b/c of fraudulent statement, T decides not to revoke

          1. Consequences – crt will not probate the will, prop will go to heirs, and crt will also decree heir as a constructive trustee who has duty to transfer prop to the intended beneficiary

    4. Undue Influence – T’s free agency is subjugated

      1. Three Types:

        1. Prima Facie Case – 4 elements:

          1. Susceptibility – T has a weakness such that he is able to have his free will subjugated – can be psychological, financial, physical

          2. Opportunity – wrongdoer had access to T – friend, business associate, etc.

          3. Active Participation – act that gets the gift – can be force, threat of force, blackmail, etc.

          4. Unnatural Result – wrongdoer takes devise that is unexpected – has no relationship to T (i.e. T leaves everything to wrongdoer and nothing to his family)

          5. Consequences – only the part of the will affected by the undue influence is invalid – goes to residuary, if none then the heirs, or via CT w/duty to transfer to the intended beneficiary

        2. Presumption – 3 elements:

          1. Confidential Relationship – exists b/n T and the wrongdoer (Atty/Client, Dr./Patient, Guardian/Ward, Clergy/Penitent, Trustee/Beneficiary)

            1. In CA, confidential relationship arises whenever 1 person reposes trust in another

          2. Active Participation – see above

          3. Unnatural Result – see above

          4. Consequences – only the part of the will affected by the undue influence is invalid – goes to residuary, if none then the heirs, or via CT w/duty to transfer to the intended beneficiary

        3. Statutory Presumption of Undue Influence – CA statute presumes that a provision of any instrument making a donative transfer to certain persons is the product of undue influence

          1. Applies to:

            1. Person who drafted the instrument

            2. Person in a fiduciary-R w/T (atty) who transcribed the doc

            3. Care custodian of a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor or w/in 90 days before or after that period

            4. Person who is a spouse, DP, or blood relative related w/in the 3rd degree of any person in a-c

            5. Person who is a cohabitant or EE of any person in a-c

            6. Partner, SH, or ER of a law firm in which the drafter has an ownership interest

          2. Rebuttable – by clear and convincing ev

          3. Presumption does not apply to: grant to person in the 4th degree, or if an instrument is reviewed by an ind atty or a transfer that does not exceed 5k if the estate is over 100k

          4. Consequences – transferee is deemed to have predeceased the transfer w/o spouse, DP, or issue – thus the gift lapses or fails, meaning that the transferee does not take

            1. Lapsed gift passes to the residuary, or if not residue to the heirs at law by succession

  2. Mistake

    1. Mistake in Content – the wrong beneficiary is named or the wrong gift is made

      1. Mistake in Omission – words are accidentally left out, no remedy is given, crts will not rewrite wills, but possibility of DRR

        1. i.e. T’s will states “Blackacre to John” but T actually wanted it to go to “John and Mary” – crt will not rewrite will

      2. Mistake in Addition – words are accidentally added, remedy may be given, the court may strike out provision

        1. i.e. T’s will states “Blackacre to John and Mary” but he only wanted to give it to John, crt will strike out Mary’s name b/c it is an addition

    2. Mistake in Execution – T signs the wrong document

      1. First Situation – T mistakenly signs his will believing it is non-testamentary – not probated b/c T lacked intent

      2. Second Situation – reciprocal wills or mutual wills – crt will reform will and sub in correct party’s name in equity

    3. Mistake in Inducement – a particular gift is made or not made on the basis of T’s erroneous beliefs (i.e. T would like to leave B a gift, but believes B is dead) – no relief is given, party takes nothing

      1. Exception – if both the mistake and what T would have done but for the mistake appears on the face of the will, the crt will give relief

    4. Mistake in Description (Ambiguity) – no one or nothing fits the description or 2 or more persons or things fit the description

      1. Latent Ambiguity – on the face of the will there is no problem, but parol evidence is introduced to est. the ambiguity, then ev can be introduced again to determine T’s intent

      2. Patent Ambiguity – apparent on the face of the will – traditionally, no remedy given

        1. Modern CA Statute – can introduce parol evidence for any type of ambiguity, latent or patent, to determine what T’s intent was

    5. Mistake in Validity of a Subsequent Testamentary Instrument [Dependent Relative Revocation (DRR)] – allows crt to disregard a revocation caused by mistake

      1. Common Fact Pattern – T executes Will #1, executes similar Will #2 to change something and subsequently revokes Will #1 thinking that Will #2 effectuates his intent, but T is mistaken. Will #2 either is invalid as a will, or if it is valid as a will, fails to effectuate T’s intent. DRR allows the crt to ignore the revocation of Will #1 on the grounds that T revoked Will #1 b/c T mistakenly believed Will #2 effectuated his intent

      2. DRR Rules

        1. If T revokes her will or a portion thereof,

        2. In the mistaken belief that substantially identical will or codicil effectuates her intent,

        3. Then, by operation of law,

        4. The revocation of the 1st doc will be deemed conditional, dependent, and relative to the 2nd effectuating testator’s intent

      3. Note – if Will #1 is revoked by phy act by being destroyed and no longer exists, Will #1 can still be probated for DRR under CA’s Lost Will Provisions:

        1. A lost will or accidentally destroyed will can be probated if at least 1 wit testifies as to the terms of the will

        2. Wit does not necessarily have to be one of the attesting Ws (i.e. can be atty who drafted the will)

    6. Mistake Re Living Children (Pretermission) – accidental omission of child

      1. A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument – child will take an intestate share of the estate

        1. Corollary – a child born or adopted before all testamentary instruments are executed and not provided for is not pretermitted and takes nothing

          1. Exception – treated as pretermitted if the only reason the child was not provided for is b/c T erroneously thought the child to be dead or not existent (i.e. T fathers a child and does not know child exists)

  3. The Components of a Will

    1. Integration – refers to which papers make up the will – crts consider intent and presence

      1. Intent – T must have intended for the papers in question to be part of the will

      2. Presence – the paper must have been actually or physically present at the time of execution

      3. Proving Integration – est. a physical connection among all the pages (stapled), or est. a logical connection (does the last word on page 1 relate to the first word on page 2?)

    2. Incorporation by Reference – a non-integrated writing is given testamentary effect and becomes part of the will if referred to in the will

      1. Four Elements:

        1. A writing,

        2. In existence when the will was executed,

        3. That is clearly identified in the will, and

        4. T must have intended to incorp the doc into the will

      2. Note – incorporated doc need not be a valid instrument

    3. Fact of Independent Significance – crt can fill in ambiguities in will w/parol ev that is trustworthy b/c the facts are capable of independent verification, no concern for fraud – who a beneficiary is, or what gift is given, may be given facts of significance ind from T’s will

      1. Ask – even w/o the will, would this fact have existed?

      2. Ex – family tree written in Bible

    4. Exception to Incorp by Ref – List Disposing of Limited Tangible Personal Property

      1. Section 6132 – For deaths after Jan 2007, a secondary writing can be given testamentary effect if:

        1. It is referred to in the will, dated, and either signed or handwritten by the T

        2. Describes the items and recipients w/reasonable certainty,

        3. Executed before or after the will, and

        4. Directs the disposition of tangible personal property (excluding cash and biz prop) valued, at the time of T’s death at not more than 5k per item and not more than 25k in the aggregate

      2. Note – if the value of an item exceeds 5k, then it is not subject to 6132, and passes to the residuary and is not counted toward the 25k limit

      3. If any person designated to receive prop in the writing dies before the testator, the prop passes as directed in the writing and the disposition lapses

    5. Pour-Over Wills – will states that distribution shall be in accordance with terms of trust – provision can be validated by:

      1. Incorp by Ref

      2. Facts of Ind. Sig

      3. Uniform Testamentary Additions to Trusts Act (UTATA) – if there is a valid trust, which was in existence b4 the will was executed, or at the time of execution, the pour over provision is valid by statute

  4. Formalities of Execution for Attested/Formal Wills

    1. Elements for Attested Wills

      1. Will must be in writing (oral wills are not recognized in CA)

      2. Will must be signed by one of the following

        1. Testator

        2. Third Person in T’s presence and at T’s direction

        3. Conservator pursuant to crt order

      3. T’s signing (not Ws’ signing) must be done in the presence of 2 Ws , both present at the same time

        1. T can sign b4 hand and then acknowledge his sig or acknowledge the will in the presence of the 2 Ws, both present at the same time

        2. Presence can be sight or conscious

      4. Ws must sign the will during the T’s lifetime

      5. Ws must understand that the instrument they sign is T’s will

      6. NOTE – for deaths post Jan 2009, CA’s Clear and Convincing Standard applies and will can still be admitted even if it fails to meet elements above, if the proponent of the will est. by C&C ev that at the time T signed the will, he intended the doc to constitute his will

      7. NOTE – for deaths before 2009, use the Substantial Compliance Doctrine – if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code

    2. Interested Witnesses – a witness who is a beneficiary under the will

      1. Consequences – will can be still be probated, but unless there are 2 other disinterested witnesses, a presumption arises that the W-beneficiary secured the gift by wrongdoing

      2. If W-beneficiary rebuts the presumption, can take share in will

      3. If W-beneficiary cannot rebut, can only take amount she would have received via intestacy

      4. Presumption is inapplicable if W-beneficiary is taking only in a fiduciary capacity (takes only as a trustee)

    3. Conditional Wills – will whose validity is made conditional by its own terms

      1. i.e. T’s will states “This is my will if I die in Europe during my vacation”

      2. Valid an can be formal attested wills or holographic wills

  5. Formalities of Execution for Holographic (Handwritten) Wills

    1. Elements for A Valid Holograph

      1. Signed by T

        1. Can be anywhere on will

      2. Material provisions must be in T’s own handwriting

        1. Material – gifts made and beneficiaries’ names

    2. Testamentary Intent – in a holographic will, a statement of testamentary intent (“this is my last will”) need not be on the face of the will and in testator’s handwriting

      1. Extrinsic ev is admissible to determine T’s intent (i.e. T told ppl she just executed her will)

      2. Series of letters can constitute a will under integration

      3. Does not matter if testamentary intent is part of commercially printed form

    3. Dates – a date is NOT req. in a holographic will

      1. But lack of a date can create a problem w/inconsistent wills and capacity

      2. If an undated H-will is inconsistent w/the provisions of a dated will, dated will controls to the extent of the inconsistency, unless the undated H-will time of execution is est. to be after the date of execution of the other will

      3. If 2 undated H-wills, neither will can be probated to the extent of the inconsistency

      4. If T lacked capacity at any time during which the H-will might have been executed, the H-will is invalid, unless it is est. that it was executed at a time when T had capacity

  6. Choice of Law

    1. Out-of-state will can be admitted into probate in CA if the will complies w/the formalities of execution of:

      1. CA law, or

      2. The place where the will was executed, or

      3. The place where T was domiciled at the time of execution

  7. Codicils – a testamentary instrument executed in compliance w/the CA Probate Code, which modifies, amends, or revokes a will

    1. Any alteration on the face of the will is ineffective unless the will is re-executed w/the proper formalities or the changes qualify as a H-codicil

    2. Republication – codicil republishes a will so the will is deemed to be re-executed at the time of the codicil (“down-dating”)

      1. Pour-over wills and incorp by ref – once codicil republishes the will, it does not matter that trust was not in existence at time of original will, as long as it was in existence before the codicil

      2. Pretermission problems – once codicil republishes the will, there is no pretermission b/c the birth or marriage is deemed to have taken place b4 the will was executed

    3. Revocation of Codicils –

      1. Presumptions:

        1. If T executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that the T indented to revoke only his codicil

        2. BUT if T executes a will, then executes a codicil, and T subsequently revokes the will, there is a rebuttable presumption that T intended to revoke the will AND codicil

  8. Revocation by Physical Act

    1. Elements

      1. Will must be burned, torn, cancelled (crossed out), destroyed, or obliterated (erased)

      2. T must have the simultaneous intent to revoke (if T forms intent after will is destroyed, no revocation)

      3. Act must be done by either T, or by someone in T’s presence and at his direction

    2. Cancellations & Interlineations

      1. Cancellation – crossing out (writing “void” is not a cancellation)

      2. Interlineations – writing b/n the lines – i.e. T changes gift of 1k to 2k

        1. Can only be H-will if signed and material terms– if not, acts as a cancellation and beneficiary should take nothing

        2. BUT – DRR will honor crossed out portion b/c revocation of 1k was conditional, dependent, and relative to the 2k being effective, b/c the 2k was not effective, by operation of law, the 1k was never revoked

          1. BUT when interlineation is less than the cancelled provision, DRR will not be used, party will take nothing

      3. Cancellation to increase a gift is prohibited

      4. An interlineation or other handwritten addition to a typed will that does not qualify as a H-will may nonetheless be a valid cancellation

        1. Writing “Null and Void” across will w/o sig cannot be an H-will, but is valid cancellation

    3. Duplicate Wills – duplicate originals created and signed at the same time, not photocopies

      1. Rule – if T, or someone in the T’s presence and at his direction, revokes by phy act one of the duplicate originals, then the other duplicate original also is revoked

    4. Mutilated Wills

      1. Rule – if a will is found in a mutilated condition at T’s death, and when last seen, it was in T’s possession, there is a rebuttable presumption that T mutilated the will w/the intent to revoke the will

    5. Missing Wills – if T was competent until death, the will was last known to be in T’s possession, and neither the will nor a duplicate is found at death, it is presumed that T destroyed the will w/the intent to revoke

  9. Revocation by Subsequent Written Instrument

    1. Express Revocation – Will #2 expressly revokes Will #1

    2. Implied Revocation – Will #2 revokes Will #1 by implication if Will #2 totally disposes of T’s estate – there is nothing for Will #1 to act upon

    3. Revival –

      1. Rule – if Will #2 is revoked by physical act, Will #1 is NOT automatically revived; rather Will #1 is revived only if T manifests an intent to revive Will #1

        1. Oral statements by T at the time Will #2 was revoked are admissible – i.e. T revokes Will #2 and states “Now Will #1 is back in operation” then Will #1 is revived

      2. Rule – if Will #2 is revoked by codicil, Will #1 is NOT revived unless it appears from the terms of the codicil that T wanted Will #1 revived

  10. Revocation by Operation of Law

    1. Omitted or Pretermitted Child – a child born or adopted after all testamentary instruments are executed & not provided for

      1. Consequences

        1. Child receives a share of the estate equal in value to that which the child would have received if T had died w/o ever having executed will

        2. Child receives an intestate share of assets T owned plus the assets held in any intervivos trust

        3. Other gifts will have to be abated or reduced, thus revocation by operation of law

      2. Exceptions

        1. T’s failure to provide for the child was intentional & that intention appears from the will

        2. At the time of execution, T had 1 or more children and transferred by will or revocable intervivos trust substantially all of his estate to the parent of the omitted child

        3. T provided for the child by transfer outside the will w/the intent that the transfer is to be in lieu of any will provision

    2. Omitted Spouse – a surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for

      1. Consequences

        1. Spouse receives a statutory share of the estate equal in value to that which the spouse would have received if the Thad died w/o ever having executed doc

        2. Gets ½ of CP, QCP, and a share of SP if T had died intestate (but in no event is the share to be more than ½ of the value of the SP in the estate)

        3. Other gifts will have to be abated or reduced, thus revocation by operation of law

      2. Exceptions

        1. If exclusion was intentional, and that intention appears from the face of the will

        2. T provided for the spouse by transfer outside the will w/the intent that the transfer be in lieu

        3. Omitted spouse signed a waiver

          1. Waiver – a voluntary relinquishment of a known right, whether signed b4 or during M

          2. Any and all probate rights can be waived

          3. Waiver Elements:

            1. Must be in writing

            2. Signed by the waiving spouse before or during M,

            3. Full disclosure by T of T’s finances, and

            4. Ind Counsel for the waiving spouse

          4. Exceptions – even if there is no disclosure or ind counsel, the waiver is enforceable if the waiving spouse had knowledge or should have had knowledge of T’s finances or if the waiver was in fact fair

            1. BUT in no event will the waiver be enforced if it is unconscionable

      3. Domestic Partners – treated the same

    3. Final Dissolution of Marriage/DP

      1. By operation of law, there is a revocation of the devise to the spouse if there is a final dissolution of marriage, or termination of DP

      2. Legal Separation does NOT count

      3. Also any provision conferring a power of appt on the former spouse, or nominating the former spouse as executor, trustee, conservator, or guardian is revoked

      4. The devise is reinstated if the will is unchanged and the T remarries the former spouse, or reestablishes another DP with the former DP

      5. Rules do not apply if will expressly states otherwise

  11. Revocation by Change in Property Holdings (Ademption)

    1. Classification of Four Types of Gifts

      1. Specific Devise – a gift of a particular unique item

        1. T must have the intent the beneficiary take the particular gift, and nothing else

        2. Real prop is always specific

        3. Antiques are always specific

        4. Only specific gifts adeem by extinction

      2. General Devise – gift of general economic benefit, payable out of the general assets of the estate, there is nothing unique about the gift

        1. i.e. “100 shares of Microsoft stock to Bob” (but note – “100 shares of my Microsoft stock to Bob” is specific)

        2. Executor can make the gift by either giving beneficiary 100 shares or the FMV of the shares

        3. Only general gifts adeem by satisfaction

      3. Demonstrative Devise – a hybrid b/n general and specific – it is a gift from a particular fund, but if that is not enough, the executor can resort to general prop

        1. i.e. leaves “1k in my account at BoA” account only has $900 – executor can use general assets for missing 100

      4. Residuary Devise – all other prop not expressly disposed of in the will

    2. Ademption by Extinction – when a specific gift fails b/c T no longer owns the prop at his death

      1. CL Test – if T did not own specific prop at his death, gift failed, intent was important only in determining whether gift was general/specific

      2. CA Test – intent is important not just for determining whether a gift is general/specific, but a second time in determining whether T intended the gift to fail

      3. No Ademption by Extinction in CA when:

        1. Securities change forms (merger of corp) – T did not change stock, corp did

        2. Conservator sells off assets – beneficiary will take the net sales price of asset b/c T did not sell the prop, conservator did

        3. Eminent domain award, casualty award, or an installment sale of prop in which T holds the DOT as security for the sale

          1. No Ademption for proceeds paid after T’s death

          2. For proceeds paid during T’s life, if tracing to one account is possible, beneficiary may argue that by making the proceeds easily traceable, T intended beneficiary to take all the proceeds

      4. Best options are to classify gift as general or trace

    3. Ademption by Satisfaction – T gives the beneficiary an intervivos down payment on a general gift

      1. Satisfaction Established By:

        1. Will itself provides a deduction

        2. T declares the satisfaction in a contemporaneous writing

        3. Beneficiary acknowledges satisfaction in a writing

        4. The prop given in the satisfaction is the same prop that is the subject of a specific gift to the beneficiary – this is satisfaction and also extinction b/c the prop no longer exists in T’s estate

      2. Predecease Rule – if beneficiary receives a satisfaction, but predeceases the T, the issue of the beneficiary are treated as if they received the satisfaction

    4. Advancements – an intervivos down payment made by an intestate to an heir apparent (person dies w/o a will) – same rules apply as satisfaction

      1. Compare – satisfaction applies when there is a will, advancement applies when T dies w/o a will

      2. Predecease Rule – is different, if heir-apparent receives advancement and dies, the issue of the heir apparent are not treated as having received an advancement

  12. Contracts to Make a Will or Devise (or not make)

    1. General Rule – wills/devises can be freely changed or revoked – BUT if there is a K b/n T and a beneficiary providing that T will not revoke, T is in breach if he does, and upon T’s death, the beneficiary may sue T’s estate for breach of k

    2. Methods:

      1. The will states the material provisions of the k

      2. There is express reference in the will or other instrument to the k

      3. There is a writing signed by the T evidencing a K

      4. There is C&C ev of an agreement b/n T and 3P that is enforceable in equity (estoppel)

      5. There is C&C ev of an agreement b/n T and a 3P for the benefit of a claimant that is enforceable in equity (estoppel)

    3. When the Cause of Action Accrues

      1. General Rule – cause of action accrues when the T dies (b/c anytime b4 death T can execute a new will that complies)

      2. Exception – cause of action accrues during T’s life if the T is engaging in conduct which would be a fraud on the promisee – i.e. T plans to sell prop to someone else

    4. Joint & Mutual Wills

      1. Joint Will – the will of 2 or more ppl on one doc

        1. Provisions need not be reciprocal

        2. When the 1st person dies, the will is probated

        3. When the 2nd person dies, the will is probated again

      2. Mutual Wills (Reciprocal Wills) – the separate wills of 2 or more ppl are reciprocal – i.e. H&W’s will both leave everything to one another

      3. Joint & Mutual Wills – reciprocal provisions on one instrument

      4. Rules

        1. The execution of a joint will, or mutual will, does NOT create a presumption of a K to not revoke or make a will

        2. BUT it may be evidence of a K, in conjunction w/other factors

    5. Remedies Available to Promisee

      1. Damages – P can sue T’s estate

      2. SP – P can seek to force the executor to comply w/terms of K

      3. CT – crt can probate the will as is, giving the prop to the devisee, and make the devisee a CT, who must transfer the prop to the promisee of the K

  13. Restrictions on Testamentary Dispositions

    1. Spousal/DP Protection

      1. T can dispose of only ½ of the CP

      2. T can dispose of only ½ of the QCP

        1. Note – probate def of QCP is different from def @ divorce

          1. Divorce – QCP is all prop wherever located

          2. Probate – QCP is limited to real prop located in CA

      3. Widow’s Election – arises when T attempts to dispose of more than ½ the CP or QCP – widow may accept the gift given in T’s will in lieu of her statutory right (1/2 CP) – “taking under the will”

        1. Or can renounce all benefits given in the will and confirm her rights to ½ CP – take “against the will”

        2. Example – “I give my spouse all my SP if she allows me to dispose of all our CP to the Red Cross” – wife can take under the will or under CP system

      4. Protection against illusory transfers of QCP and the widow’s election –

        1. Rule – an intervivos transfer by the T of the QCP to a 3P w/o consideration is allowed – b/c survivor i.e. non-acquiring spouse had a mere expectancy in the QCP and not a prop interest

        2. Exception – the transfer will not be allowed, when the transfer of the QCP is deemed illusory and the surviving spouse invokes the widow’s election

          1. Transfer is deemed illusory when T retained some interest or control over the prop

          2. If illusory, survivor can req. the transferee to restore ½ of the QCP

    2. Unworthy Heirs or Beneficiaries: Killers

      1. Those who feloniously and intentionally kill the T cannot take any benefits under the will or by intestacy

      2. Proof – a conviction is conclusive, in all other cases, probate crt determines guilt by a preponderance

      3. Consequences

        1. Killer is deemed to have predeceased the T and the anti-lapse statute does not apply

        2. Killer does not take and the killer’s issue do not take

      4. Three Views – (1) legal title goes to the slayer outright, (2) a slayer may not inherit because no one should profit from his own wrong, and (3) slayer may inherit, but the court will impose a CT to prevent unjust enrichment (CA view)

      5. Killing JT – severance of JT so killer does not have right of survivor – BUT killer does not lose his ½ interest in the prop

      6. Life Insurance – killer cannot take under the policy

      7. Wrongful Death Actions – killer cannot bring an action or benefit from such an action

      8. Elder Abuse – any person who has committed physical abuse, neglect, or fiduciary abuse is prevented from receiving prop from the victim’s estate

        1. Deemed to have predeceased V if: (1) abuse proven with C&C Ev, (2) acted in bad faith, (3) acted recklessly, oppressively, fraudulently, or maliciously, and (4) V was substantially unable to manage her own finances or resist fraud or undue influence

    3. Will Contests – a will may be enforced unless the beneficiary, with reasonable cause, brings a contest on grounds of forgery, revocation, or invalid transfer to a person who drafted the instrument

  14. Intestate Succession (No Will)

    1. Surviving Spouse – takes her ½ share of CP/QCP + T’s ½ share of CP – takes 100%

      1. SP – surviving spouse gets:

        1. If no issue, parent, siblings, or issue of deceased sibling – 100%

        2. If 1 child, or issue of a predeceased child – 50%

        3. If more than one child, or issue of predeceased children – 33% (1/3)

        4. If no issue, but parent or parents of issue – 50%

    2. Intestate Scheme for SP if not surviving spous/DP

      1. Issue

      2. Parents

      3. Issue of Parents

      4. GPs

      5. Issue of GPs

      6. Issue of a predeceased spouse i.e. former stepchildren

      7. Next of Kin

      8. Parents of deceased spouse i.e. former in-laws

      9. Issue of parents of a predecease spouse

      10. Escheat

    3. Per Capita/Representation

      1. Section 240 – make distribution (1) at 1st level s/o is living and give shares to all living ppl at that generation and (2) to deceased members of that generation who leave issue

        1. Per Capita – issue of the same degree take equally in their own right

          1. Hypo – X dies intestate w/children A, B, and C who are all alive at X’s death, each child takes 1/3 per capita, meaning each takes equally in his own right

        2. Issue of more remote degree take “Per Capita with Representation”

          1. Hypo – X has 2 children: A and B. Both predecease X. A leaves child C, who survives X. B leaves children D and E. D survives X, but E predeceases X. E leaves children F and G, both of whom survive X.

            1. B/c no one is alive at first level, drop down to C’s level to distribute. Three shares to C, D, E. Since E is dead, his 1/3 share is split b/n F and G (1/6 each) C and D each take 1/3 per capita (in their own right), while F and G step into the shoes of E and take E’s share by right of rep

      2. Section 246 – make distribution at the first level, even if everyone is dead, so long as they left issue. The issue then step into the shoes of their predeceased ancestor

        1. Strict Per Stirpes – makes distribution at first level even if everyone is dead

    4. Adopted Children – treated as a natural child of adopted parents

      1. Adoption severs relationship w/natural parents

        1. Exception – relationship w/natural parent is not severed if the adoption is by the spouse or DP of the natural parent, or after the death of either of the natural parents

      2. Stepchildren & Foster Children – child is treated as having been adopted if:

        1. The relationship began during the child’s minority,

        2. It continued throughout the parties’ lives, and

        3. It is est. by clear and convincing ev that the stepparent/foster parent would have adopted but for a legal barrier (i.e. no consent)

      3. Equitable Adoption (Adoption by Estoppel) – parties hold themselves out as parent and child

    5. Non-Marital Children

      1. Marital status of the parents is irrelevant

      2. In DP, parent-child relationship is est. as to non-birthing partner by means of one of several presumptions:

        1. Child born during the DP is presumed to be a child of the non-birthing DP

        2. If the DPs formed (or even just attempted to form) a DP in a lawful manner after the child’s birth and (1) the non-birthing DP is named on the birth certificate, or (2) the non-birthing DP makes a voluntary promise to pay child support or is ordered to do so by a crt, then a parent-child relationship is presumed b/n the child and the non-birthing DP

    6. Half Bloods – relatives who have only 1 common parent and not 2 (half siblings) – inherit the same as a whole blood

  15. Distribution of the Estate: Who Can Take?

    1. Posthumous Children – a child conceived during the life of the T, but born after the death – deemed heirs of T and beneficiaries under the will

    2. Lapse & Anti-Lapse – for a beneficiary to take a devise, he must survive T, dead ppl do not take

      1. Rule of Lapse – if beneficiary does not survive, gift lapses/fails – falls to residue, if there is one, if it is already part of the residue, it goes to intestacy

      2. Anti-Lapse Statute – applies if the devisee who predeceased T was kindred (blood relative) of the T and this predeceased devisee leaves issue – issue will step into shoes and take

        1. Devisee CANNOT be the spouse/DP of T

        2. Does not apply if will has backup provision (i.e. “is person survives me by 30 days”) – shows intent to go to residue if person predeceases – anti-lapse will not apply

      3. Applies to Revocable Trusts, Class Gifts

    3. Simultaneous Death – if the devolution of prop is dependent on one person surviving another, and it cannot be determined by clear and convincing ev who survived whom, then it is deemed that one person did not survive the other

      1. Gift will either lapse or be distributed under CA’s anti-lapse statute

      2. Life insurance policy – policy proceeds paid to the insured’s estate

      3. 120 Hour Rule – for any heir to take, the heir must survive the intestate by 120 hrs – if it cannot be determined by clear and convincing ev, it is deemed that the heir did not survive

  16. Distribution of the Estate

    1. After Acquired Property – a will passes all prop the T owned at death, including after acquired prop

    2. Increase During T’s Lifetime

      1. Stock Splits/Dividends – if stock splits or increases shares, beneficiary will get increase so long as (1) T owned the shares of stock at the time the will was executed, (2) the securities owned matched the securities gifted in the will, and (3) the change was initiated by the corp, not the T – beneficiary will get both stock in will and any extra dividends

    3. Increase After T’s Death & During Probate

      1. For specific devises, all increase goes to beneficiary

        1. Stock dividends, stock splits, rents, cash dividends, interest on debt

      2. General devisees do not receive any increase

        1. Exception – general pecuniary gifts (gifts expressed in a dollar amount) earn interest on such gifts not distributed 1 yr after T’s death

    4. Abatement – process by which certain gifts are decreased

      1. Arises when it is necessary to pay the share of the omitted child/spouse

      2. Order of Abatement

        1. First abate prop not passing by the will

        2. Second abate from all beneficiaries of T’s will and revocable intervivos trust pro rata, in proportion to the value of the gift received

      3. No distinction is made b/n specific, general, and residuary gifts

        1. Exception for specific gifts – crt can exempt the specific gift if abating would defeat the obv intention of T

      4. No favoring of relatives over nonrelatives

    5. Exoneration – debt is extinguished

      1. CL View – if T devised a specific gift subject to an encumbrance for which T was personally liable, the executor was required automatically to pay off the debt b4 passing the prop to the beneficiary

      2. CA View – no automatic exoneration, devisee takes the specific gift subject to the encumbrance

        1. Note – a general direction to pay all my debts is not sufficient to exonerate

  17. Will Substitutes

    1. Gifts Causa Mortis – a gift made in contemplation of imminent death

      1. Only includes personal prop

      2. Delivery – donor must make a delivery of the prop to donee -3 forms:

        1. Actual/Manual Delivery – corpus itself is transferred

        2. Symbolic Delivery – something rep of the corpus is given to donee – i.e. writing

        3. Constructive Delivery

          1. CL View – what is given in the donee is a key that unlocks a box or room, in which is located the corpus, which is too bulky for manual delivery

          2. Modern View – a constructive delivery will be found whenever the donor has done everything possible to effectuate a delivery, and there is no fraud or mistake

        4. If donor survives peril gift was made in consideration of , the gift is revoked by operation of law

    2. Totten Trusts – see trusts outline

    3. Payable on Death Designations – a POD designation on a bank account is invalid as a testamentary disposition, but is distinguishable from a totten trust only by the fact that the depositor did not say he held the proceeds “in trust”

    4. Multiple-Party Accounts – are not testamentary

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