wills

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Author:
fuhsiang
ID:
93467
Filename:
wills
Updated:
2011-07-10 17:57:56
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CA wills
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barbri 2011
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  1. capacity
    • at time of execution - testator must satisfy 4 elements:
    • 1. be at least 18
    • 2. be able to understand the extent of her property
    • 3. know the natural objects of her bounty
    • 4. know the nature of her act
  2. the insane delusion
    • will can be attacked if at the time of execution the testator was suffering from an insane delusion. 4 elements needed:
    • 1. T had a false belief
    • 2. false belief was produced bya sick mind
    • 3. there is no evidence to support the belief
    • 4. delusion must have affected T's will
    • * consequences of finding an insane delusion = only part of W effected = invalid.
  3. consequences of fraud
    • fraud = representation / mateiral fact / known to be false / purpose of inducing / in fact induced
    • 3 types of fraud:
    • 1. fraud in execution - entire will is invalid.
    • 2. fraud in inducement - only effected part is invalid.
    • 3. fraud in prevent testator from revoking - court will not probate the will & property will go to heirs.
  4. Undue influence
    • Testator's free-agency is subjugated.
    • prima facie case - susceptibility, opportunity, active participation, unnatural result.
    • presumption - a confidential relationship exists between testator and the wrongdoer (CA recognizes all common law confidential relationships). consequence: effected part of W = invalid.
    • statutory presumption of undue influence - CA law statutorily presumes that a provision making a donative transfer to the following is the result of undue infloence:
    • 1. the drafter of the instrument
    • 2. person in a fiduciary relationship with the transferor. (rebuttable)
    • 3. a care custodian of a "depedant adult" but only if the instrument was executed while care was provided, or within 90 days before or after that time. (rebuttable)
    • 4. person who is a spouse or relative within the 3rd degree of anyone described above
    • 5. person who is cohabiting or EE of any person described above
    • 6. a partner, shareholder, or ER of a law firm in which the drafter has an ownership interest.
  5. statutory presumption of undue influence does not apply to
    • instrument reviewed by an indepedent attorney, who counsels the transferor about the consequences of the intended disposition and executes a certificate stating that the attorney concludes that the disposition is not the product of undue influence; or
    • a transfer that doesn't exceed $5K if the estate is over 100K
  6. consequences of finding unde influence under the statutory presumption
    transferee is deemed to have predeceased the transferor without spouse or issue. the gift lapses and passes to the residuary devisee or, if no residue, to the heirs at law by intestate succession.
  7. mistake in omission
    • no remedy given. courts do not rewrite.
    • DRR possible relief.
  8. mistake in addition
    court may strike out the added name.
  9. mistake in execution
    • T signs the wrong doc.
    • consequence: W is not probate because T did not intend the doc to be a will.
    • reciprocal wills - each T leaves everything to the other.
    • consequence: court may reform the W.
  10. mistake in inducement
    • a gift is made or not made on the basis of T's erroneous beliefs.
    • Rule - no relief.
    • exception - relief will be given if both the mistake and what T would have done but for the mistake appears on the will. then ct will give relief.
  11. consequences of a mistake in description
    • Ambiguity
    • Latent ambiguity - on face of W there is no prob. you intro parol evidence to establish ambiguity, then u bring in addition evidence to determine T's intent.
    • Patent ambiguity - apperant on the face of the will.
    • CA: introduce parol evidence for any type of ambiguity to determine testator's intent.
  12. Dependent Relative Revocation
    • DDR = allows court to disregard a revocation caused by mistake.
    • Will 1 can be probated via DDR.
    • 1. if T revokes her will or a portion of it
    • 2. in the mistaken belief that a substantially identical will or codicil effectuates her intent,
    • 3. then by operation of law
    • 4. revocation of 1st will be deemed conditional, dependent, and relative to the 2nd effectuating T's intent
    • 5. if 2nd does not effectuate T's intent, then the 1st was never revoked.
  13. mistake regarding living children
    pretermission
    • rule - child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.
    • a pretermitted child takes an intestate share of the estate.
  14. integration
    what papers make up the will?
    • intent = testator must have intended for the papers in question to be a part of the will
    • presence = the paper must have been actually or physically present at the time of execution
  15. incorporation by reference
    • a non-intergrated writing is given testamentary effect and becomes part of the will. as such it is now admitted into prbate.
    • elements to incorporation by reference:
    • 1. a document or writing
    • 2. it must have been in existence when the will was executed
    • 3. the doc must be clearly identified in the will; and
    • 4. testator must have intended to incorporate the doc into the will
    • 5. if establish 1 ~ 3, 4 typically implied by the court.
  16. facts of indepedent significance
    • Q: even without the will, will this fact have existed?
    • facts of ind significance allows us to fill in the blanks of T's will with parol evidence that is trustworthy.
  17. writing disposing of limited tangible personal property
    • for decedents dying on or after 1-1-2007. a writing, whether or not it can be incorporated by reference or is a fact of ind significance, may be admitted into probate. 4 elements:
    • 1. writing must be (i) referred to in the W, (ii) dated, and (iii) either signed or hand written by the testator. (or if extrinsic evidence establishes the testator's intent regarding disposition of the items described in the reference writing)
    • 2. writing must describe the items and recipients with reasonable certainty.
    • 3. the writing may be executed before or after the will
    • 4. the writing directs the disposition of tangible personal property (excluding cash and property used primarily in a trade or business) valued, at the time of testator's death, at not more than 5K per item and not more than 25K in the aggregate.
  18. pour-over wills
    • part or all of testator's estate is devised to the trustee of an inter-vivos trust, to be administered pursuant to the terms of tha trust.
    • How do we get the trust instrument admitted into probate? 3 ways:
    • 1. incorporation by reference: we have a trust / in existence when will was executed / clearly ID in the will / T intended to incoporate the trust instrument into the W. Thus instrument will be admitted into probate and the pour-over will be validated.
    • 2. Indepedent Significance - even without W, we would still have this inter-vivos trust. (pour-over can be validated on this theory too)
    • 3. Uniform Testamentary Additions to Trust Act (UTATA): (a) so long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute. (b) the pour-over provision is valid simply because the statute says it is.
  19. elements for an attested will
    • 1. must be in writing
    • 2. must be signed by one of the following three people: testator, a 3rd person at the testator's direction if he is incapacitated, by a conservator via a court order.
    • 3. the signing must be done in the presence of two witnesses, both present at the same time.
    • 4. the witnesses must sign the will during the testator's lifetime
    • 5. witnesses understand that they signed T's will.
  20. for testators dying on or after
    1-1-2009
    CA's "clear and convincing" standard applies if the will does not satisfy 3, 4, or 5 of the traditional formalities approach.
  21. CA rules elements of an attested will
    • 1. witnesses do not have to sign in the presence of each other
    • 2. witnesses do not have to sign in the presence of the testator.
    • 3. testator does not have to declare to witnesses, "this is my will."
    • 4. neither testator nor the witnesses have to sign at the end of the will.
  22. interested witness
    • someone who is a beneficiary in the W.
    • conseqnences - will not valid.
    • But the presumption of wrongdoing is inapplicable if witness-binificiary is taking only in a fidicuary capacity (e.g., takes as a trustee)
  23. elements for a valid holograph
    • 1. Will must be signed by T
    • 2. material provision must be in T's handwriting. Material provisions are: the gifts made, the beneficiaries' names.
  24. codicils
    • testimoney instrument executed in compliance with the CA probate code which modifies, amends, or revokes a will.
    • * a codicil republishes a will - causes the will to speak from the date the codicil is executed on
  25. revocation of codicils
    • if testator executes W, then a codicil, and then revokes the codicil, there is a rebuttable presumption that testator intended to revoke his codicil.
    • if testator executes W, then a codicil, and testator subsequently revokes the W, there is a rebutable presumption that testator intended to revoke the will and the codicil.
  26. revocation by physical act
    • 1. W must be burned, torn, cancelled, destroyed or obliterated.
    • 2. Testator must have the simultanrous intent to revoke.
    • 3. act must be done by testator, or by someone in his presence and at his direction.
  27. manner of revoking
    • W1 revokes W2 ...
    • express or
    • implied - e.g., W2 totally disposes of a previously granted estate.
  28. omitted or pretermitted child
    • a child born or adopted after all testomoney instrument are executed & not provided for in any.
    • consequence = gets a share of decedent's estate equal in value to what he would have gotten if the decedent had died without ever having executed any testamentary instrument.
    • exception - failure to provide was intentional & intention appears in an instrument, already provided for the parent of the pretermitted child, already provided for the child in some other way.
  29. omitted spouse
    • consequences - spouse gets a statutory share of the decedent's estate equal in value to that which the spouse would have gotten if the D had died without ever having executed any testamentary instrument.
    • a. half of the CP
    • b. half of the QCP
    • c. a share of the decedent's SP
    • * for ommitted spouse to take this statutory share, other gifts will have to be abated.
    • exceptions - omission was intentional; already provided for spouse by transfer outside of the testamentary instruments with the intent that the transfer be in lieu of any testamentary provision; omitted spouse signed a waiver.
  30. classification of gifts
    • for ademption by extinction - only specific gifts addem by extinction.
    • for ademption by satisfaction - typically only general gifts adeem by satisfaction.
    • for abatement problems.
  31. ademption by extinction
    • when a specific gift fails because teatator did not own the property at his death.
    • In CA intent is important for determining whether gift is specific or general and also in determining whether testator intended the gift to fail.
  32. ademption by satisfaction
    testator gives an inter vivos down payment on a devise. Later, downpayment will be subtracted.
  33. requirement for a contract to not revoke
    or to make a will
    • 5 alternative ways in CA.
    • 1. the instrument states the material provisions of the contract.
    • 2. there is express reference in the will to a K.
    • 3. there is a writing signed by the decedent evidencing a K.
    • 4. there is clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity.
    • 5. there is clear and convincing evidence of an agreement between decedent and a 3rd person for the benefit of the claimant that is enforceable in equity.
  34. intestate scheme
    no surviving spouse
    • 1. issue
    • 2. parents
    • 3. siblings
    • 4. grand parents
    • 5. grand parents' issue
  35. rule of lapse
    if the beneficiary does not survive the testator, his gift lapses - fails. Unless a contrary intent is expressed in W, the gift falls into the residue; if it is already part of the residue, it goes to other co-residuary devisees. Otherwise, the gift goes by intestacy.
  36. CA's anti-lapse statute
    • rule of lapse will not apply.
    • CA's anti-lapse - applies only if the devisee who predeceased the testator was "kindred" of the testator, or kindred of a surviving, deceased or former spouse of the testator, and this predeceased devisee leaves issue. The issue then stop into the shoes of the predeceased devisee.
  37. acts of indepedent significance
    this doctrine permits a court to fill in certain blanks in the testator's will with documents or acts effectuated during the testator's lifetime for primarily nontestamentary motives.

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