Wills Intent • Capacity o At time of Execution, testator must be (1) 18 years old; (2) able to understand the extent of his property; (3) know who is benefiting; (4) that he is executing a will. o Consequences: if no capacity, the entire will is invalid, and property passes via Intestate Succession, unless there is a prior Will where he did have capacity. • Insane Delusion o A will can be attacked if at the time of execution, the testator was suffering from an insane delusion (example: believing one’s spouse is unfaithful) o Elements: (1) Testator had a false belief; (2) False belief was the product of a sick mind; (3) no evidence to support the belief; (4) Delusion must have affected testator’s will. o Consequences: only that part of the will that was affected by the delusion is invalid. • Fraud o There must be a representation of material fact known to be false by the wrongful for the purpose of inducing action or inaction; and in fact induces the action or inaction desired. o Fraud in the Execution: someone forges testator’s signature to a will; or testator thinks he is signing something else, but is in fact signing a will. Consequences: entire will is void and property passes under IS, unless there is a prior will that was validly executed. o Fraud in the Inducement: wrongdoer’s representations affects the contents of testator’s will. Here, Testator does intend property to be in his will. (example: son tells dad who was gonna leave $ to charity that charity is under investigation by the FBI). Consequences: only that part of the will affected by the fraud is invalid. o Fraud in Preventing Testator from revoking the will: wrongdoer prevents testator from revoking his will because of some lie or fraud. Consequences: court will probate the will & give the property to the wrongdoer, then create a constructive trust, and wrongdoer has to transfer the property to the intended beneficiary. • Undue Influence o = Testator’s free agency is subjugated. o Elements: (1) Testator is Susceptible (psychological, financial, physical); (2) Wrongdoer had access to testator; (3) wrongful act gets the gift; (4) Unnatural result. o Usually, this person would not ordinarily be expected to take a devise. (i.e. employee) o Consequences: only that part of the will affected by the undue influence is invalid. o Statutory Undue Influence: California law generally invalidates a donative transfer from a testator to a person who drafted the instrument (or that person’s relatives), unless testator is related to the Consequences: Devisee does not take the gift, but only to the extent that the gift exceeds that person’s intestate share. Mistake • Mistake In Content: wrong beneficiary is named or wrong gift is made. o (1) mistake in omission (words are left out)no remedy. Courts do not rewrite wills! o (2) mistake in addition (words are accidentally added). court strikes out added word. • Mistake in Execution: testator signs the wrong document o (1) Testator mistakenly signs his will believing it is not a will. Will is not probated because there is no intent. o (2) Reciprocal wills & mutual wills; 2 testators, each leaves everything to the other. Mistakenly sign each others’ willCourt may reform, substitute signatures. Equity. • Mistake in Inducement: a particular gift is made or not made on the basis of Testator’s erroneous beliefs (example: wants to leave A something, but thinks A is dead). Wills o General Rule: no relief is given. 1 Exception: if the mistake & what testator intended, but for the mistake, both appear on the face of the will, the court will give relief. (example: “I leave A nothing b/c A is dead, but if A were not dead, I’d leave A $1000”) • Mistake in Description: no one or nothing fits the description or two or more persons or things fit the description. o Consequences: (1) Latent Ambiguity (on the face of the will there is no problem): can use Parol Evidence; (2) Patent Ambiguity (ambiguity is apparent on the face of the will). o Modern Rule: can introduce PAROLE EVIDENCE for any type of ambiguity. • Dependant Relative Revocation: Mistake in the Validity of a Subsequent Testamentary Instrument o =Allows a Court to Disregard a Revocation Made (through physical act or new will) by mistaken belief that new will, which is substantially the same, is valid. **A will can be revoked by a physical act & by a subsequently executed will o Testator executes Will # 1, then executes Will #2 and subsequently revokes Will #1, thinking that Will #2 effectuates his intent. But testator is mistaken. Will #2 is invalid as a will or fails toe ffectuate testator’s intent. DRR allows the court to ignore revocation of Will #1 on the grounds that testator revoked Will #1 because testator mistakenly believed Will #2 effectuated his intent. o Requirement: Will #2 must be substantially the same as will #1 o If Will #1 is revoked by physical act by being destroyed, and is brought back by DRR, then under Cal’s “Lost Will’s Provision”-u need at least one witness to testify to will’s contents (does not have to be an attesting witness). • Mistake Involving Living Children (Pretermission) o Pretermission= accidental omission. A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided fro in any testamentary instrument. o IF CHILD BORN (or adopted) AFTER WILL = Pretermitted; Child takes an Intestate Share. o If CHILD BORN BEFORE WILL = not pretermitted, and if not provided for, takes nothing. Exception: if the only reason the child was not provided for is because testator erroneously thought the child to be dead or nonexistent, testator made a mistake. Components of the Will-4 Issues • Integration: refers to which papers make up the will. o Requirements: (1) INTENT (testator must have intended for the papers in question to be part of the will; and (2) PRESENCE (the paper must have been actually or physically present at the time of execution). • Incorporation by Reference: non-integrated writing is given testamentary effect and becomes part of the will o = A document or writing that MUST have been in EXISTENCE when the will was executed; clearly IDENTIFIED in the will; and Testator must have INTENDED to incorporate the document into the will. (intent is usually implied). o If the item to be incorporated is invalid itself, it does not matter. The document does not have to be valid for what it purports to stand for. Therefore, you can incorporate by reference an invalid deed, an invalid contract, or even an invalid will of the testator or a third person. • Facts of Independent Significance o Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from Testator’s will. (Example: I leave all my property to the church I am a member of at the time of my death). Wills o RULE: Facts of independent significance allow us to fill in the blanks to the testator’s will with PAROL EVIDENCE that is trustworthy. o What is a fact of Independent Significance? Even without the will, would this fact have existed? The fact can be a future fact or act, or a past fact or act. (“I leave my car to John”; “I leave my property to people I had dinner with last Thursday”) o What is not? (“I leave all my property to the people I will name on a note tomorrow”-without the will, there’d be no note.) • Pour-Over Wills o = leaving the proceeds in a will to the trust to be administered pursuant to trust terms o We can validate a pour-over provision by (1) Incorporation by Reference (if in existence when will was executed); by (2) Independent Significance (trust is a fact of I.Sign.); by (3) Uniform Testamentary Additions to Trust Act UTATA-(so long as the trust is valid, the pour over provision is valid.) Formalities of Execution of Attested Wills • Elements For an Attested Will (=witnessed will) o (1) Will must be in WRITING (Oral wills are not recognized in California) o (2) Will must be Signed by (a) Testator or Testator’s agent if testator is incapacitated o (3) In the Presence of 2 Witnesses-both present at the same time. The witnesses do not need to see testator sign as long as he acknowledges his signature or acknowledges the Will. o NOTE: (i) witnesses do not have to sign in the presence of each other or the testator; (ii) testator does not have to declare “this is my will”; (iii) testator does not have to sign before the witnesses sign (no order required); (iv) Signing anywhere on the will is OK; (v) The will is valid if there is substantial compliance with Cal Probate Code; even if there is not literal compliance. • Interested Witness o = a witness who is a beneficiary under the will. o Consequence: will is valid, but there is a presumption that witness/beneficiary secured gift by wrongdoing (unless there are two other disinterested witnesses.) If witness/beneficiary cannot rebut, he takes the amount he would get in Intestacy. • Conditional Wills o = a will whose validity is made conditional by its own terms. o The will is to be probated only if the condition is satisfied. o Example: “This is my will if I die in Europe during my vacation.” Formalities of Execution for Holographs • Elements for a Valid Holograph (= handwritten Will) o (1) Signed by Testator (can be anywhere on the will); o (2) MATERIAL provisions must be in Testator’s own handwriting (material provisions= gifts made, beneficiaries) • Testamentary Intent: A statement of testamentary intent need not be on the will (“This is my last will”) o Testator makes a list of names and gifts-Will or List? If testator told people she has executed her will, the document is a will and is admitted into probate. Extrinsic Evidence • Dates: A date is not required in a holographic will. o But a lack of a date can create a problem with Inconsistent Wills & Capacity. Choice of Law • = when a will is executed in another state, what law? • Will can Be Admitted into California Probate If: Wills o (1) complies with California Law o (2) complies with law of place where Executed o (3) complies with the law of place where testator is domiciled at time of execution. Codicils • = testamentary instrument executed in compliance with the statute of wills (our probate code) which modifies, amends, or revokes a will. • Republication o A codicil republished a will. This means that a codicil causes the will to speak from the date that the codicil is executed on. o ***IN CALIFORNIA, A CODICIL DOES NOT AUTOMATICALLY REPUBLISH A WILL. THE TESTATOR MUST EXPRESSLY STATE THE CODICIL IS REPUBLISHING THE WILL. o Pour Over Wills & Incorporation By Reference: incorporation by reference can work because a trust as modified was in existence on the date that the will is deemed executed. o Pretermission: there can be no pretermission if the birth or marriage is deemed to have taken place before the codicil was executed (thus, the will was executed) • Revocation of Codicils o If testator executes a will, then executes a codicil, then revokes the codicil, PRESUMPTION= testator intended to revoke ONLY the codicil. o If testator executes a will, then executes a codicil, then revokes the will, PRESUMPTION= testator intended to revoke BOTH the codicil and the will. Revocation by Physical Act** • Elements o (1) Will must be burned, torn, cancelled (lining out or crossing out with pen or pencil), destroyed, or obliterated (erasing) o (2) Testator must have the SIMULTANEOUS INTENT to revoke. (Coincide with Act) o (3) The act must be done either by testator or by some one in testator’s presence and at his direction. • Cancellations & Interlineations o Cancellation= crossing out or lining through RULE: Cancellation to increase a gift is prohibited. Example: “I leave my farm to X & Y”-Y is crossed out. X does not get the whole farm. X only gets ½ of the farm. The other ½ goes to residuary deviesees. o Interlineations= writing between the lines. When interlineations is less than the cancelled provision, DRR will not be sued. o Testator executes an attested will that states, “I leave $1,000 to Mary”. Then crosses out the “$1000” and writes in his own handwriting “$1500”. The $1500 is invalid as a holographic will because the name of beneficiary (Mary) is not in testator’s own handwriting. It is typed. (need gift and name!) But under DRR; the revocation of the $1000 was conditional, dependent, and relative to the $1500 being effective, because the $1500 was not effective, the $1000 was never revoked. If original gift was $1500 and testator cancelled it and made it $1000, neither is valid. Mary gets nothing. When interlineations are less than the cancelled provision, DRR will not be used. • Duplicate Wills o If testator revokes by physical act one of the duplicate originals, then the other duplicate is also revoked, as a matter of law. • Mutilated Wills Wills o If a will is found in a mutilated condition at Testator’s death, and when last seen it was in testator’s possession. Revocation by Subsequent Written Instrument*** • Manner of Revoking o Express Revocation: Will #1 can be revoked by Will #2 if Will #2 expressly revokes Will #1. o Implied Revocation: Will #2 revokes Will #1 by revocation if Will # 2 totally disposes of testator’s estate. • Revival** o If Will # 2 is revoked by a physical Act, Will #1 is revived ONLY if testator manifests an INTENT to revive Will # 1. Oral statements are admissible. o If Will # 2 is revoked by a Codicil, Will #1 is NOT revived unless it appears from the terms of the codicil that the testator wanted Will #1 revived. Revocation by Operation of Law • Omitted or Pretermitted Child*** o =A child born or adopted after will is executed and not provided for therein. A child receives an intestate share of the testator’s estate, equal in value to that which the child would have received if the testator had died intestate (without will ((or trust after 1998))). For the child to take this intestate share, other gifts will have to be reduced o EXCEPTIONS (1) Testators intentionally did not provide for the child & that intention appears from the will. (2) Testator had one or more children and devised substantially all of his estate to the parent of the omitted child. (3) Testator provided for the child by transfer outside the will with the intention that the transfer is to be in lieu of a testamentary provision. o For decedents dying on or after January 1, 1998decedent’s estate includes a REVOCABLE TRUST. • Omitted Spouse o = a surviving spouse who married the testator after the execution of the will & is not provided for therein. Omitted Spouse takes a statutory share of the testator’s estate. (1/2 CP, SP that spouse would have received if Testator died intestate). o EXCEPTIONS (1) Testator intentionally did not provide and that intent appears in the will. (2) Testator provided for spouse by transfer outside of the will with the intention that the transfer be in lieu of a testamentary gift. (3) WAIVER: Omitted spouse signed a waiver. Requirements (i) signed writing; (ii) full disclosure of finances; (iii) independent counsel by waiving spouse. HOWEVER, courts find that Waiver will be enforceable if it is Fair!!! Never enforced if it is Unconscionable. • Omitted Domestic Partner o Domestic Partner = (1) same sex or one is at least 62; (2) file papers. • Final Dissolution of marriage or domestic partnership o ***There is a revocation is there is an annulment or divorce; BUT no revocation if it is only a legal separation. Devise is reinstated if will is unchanged and they remarry. Revocation by Change in Property Holdings • Classification of 4 Types of Gifts o Specific Devise: gift of a particular item (property, antique automobile) Wills o General Devise: payable out of the general assets of the estate (stocks, etc.) o Demonstrative Devise: Hybrid, gift from a particular fund, but if that gift is not enough, executor can resort to general property. o Residuary Devise: all other property not expressly disposed of in the will. • Ademption by Extinction o **Only specific gifts adeem by extinction. o = when a specific gift fails because testator did not own the property at testator’s death. o Common Law: if gift was not owned at death, it was adeemed by extinction. (don’t get) o Cal: Must look at INTENT of testator to see if he intended the gift to fail. o There is no Ademption by extinction (testator did not intend gift to fail) IF: (1) Securities changing form (merger) (2) Conservator sells off the assets (3) Eminent Domain Award (if u can trace-no intent) • Ademption by Satisfaction o **Typically, only General Devise adeems by satisfaction, except (#4) o = Testator gives beneficiary an inter vivos down-payment on devise. o Example: Testator in his will leaves B $1,000. Testator later says that “I left you $1000 in my will, but why wait for me to die. Here’s $100 on account.” o 4 ways to establish a Satisfaction (1) Will provides for deduction of inter vivos gift (2) Testator declares in a contemporaneous writing that the gift is a satisfaction. (3) Beneficiary acknowledges in a writing (at ay time) the satisfaction (4) Property given in the satisfaction is the same property that is the subject of a specific gift to the beneficiary (= both Ademption by Satisfaction & Extinction) o Beneficiary Receives Satisfaction But Predeceases Testator The heirs of the predeceased beneficiary is treated as if they received the satisfaction, unless the will states otherwise. • Advancements o = inter vivos down payment made by an intestate to an heir apparent. (No will) o 2 Ways to Establish Advancement Intestate declares in a contemporaneous writing that the gift is an advancement Heir acknowledges in a writing (at any time) that the gift is an advancement. o Heir Receives Advancement But Predeceases the Intestate Issue of the heir-apparent is NOT treated as having received an advancement, unless the advancement provides otherwise. (Opposite of Satisfaction). Contracts to not revoke or make a will • General Rule: Wills can be changed. But if there is a Contract Not to Revoke, cannot revoke. • Need a K, OR: (Alternative ways in California) o (1) Will states the material provisions of the K. o (2) There is express reference in the will to a K. o (3) There is a writing signed by the decedent evidencing a K. o (4) Agreement between decedent and promisee that is enforceable in equity (Estoppel) • When Can the Beneficiary Sue? When the Decedent Dies. o Because Decedent, before he dies, can execute a will that complies. o Exception: if decedent engages in conduct which would be fraud. • Joint and Mutual Wills o Joint Will= will of 2 or more people on 1 document. When the first person dies, the will is probated. When the second person dies, the will is probated again. o Mutual Will= The separate wills of 2 or more people which are reciprocal. Wills H & W execute their own wills, leaving everything to each other. o RULE: the execution of a joint or mutual will Does NOT create a presumption fo a contract not to revoke or make a will. • Remedies Available to Promisee o Π can sue decedent’s estate for damages. Restrictions on Testamentary Disposition • Definitions: o Community Property: personal & real property acquired during marriage o Separate Property: property acquired before marriage or by gift, devise, descent o Quasi-Community Property: personal property & real property acquired while domiciled elsewhere that would be CP if decedent had been domiciled in this state at the time of its acquisition. • Spousal/Domestic Partner Protection o Community Property: Testator can dispose of only ½ of the CP o Quasi-Community Property: Acquiring spouse Only can dispose of ½ of QCP o Widow’s Election: Arises when testator attempts to dispose of more than ½ of CP or QCP. The surviving spouse may accept the Will and what he/she receives or renounce the will and get his/her ½ CP & ½ QCP. o Illusory Transfers of QCP: General Rule: An inter-vivos transfer by the decedent (the acquiring spouse) of QCP to a 3rd person without consideration is allowed. Why? B/c the survivor (non-acquiring spouse) had a mere expectancy in the QCP & not a property interest. Exception: the transfer will not be allowed when it is illusory (i.e. the acquiring spouse retains some interest or control over the property. ) Then, survivor can restore the ½ QCP to the decedent’s estate. • Unworthy Heirs or Beneficiaries o Killers of the decedent cannot take under will or in intestacy. o Proof= (1) a conviction or (2) probate court determines by a preponderance of evidence o The killer does not take, and the issue of the killer does not take. Intestate Succession • Surviving Spouse/Domestic Partner o CP & QCP: surviving spouse inherits decedents ½ of CP & ½ of QCP. o SP: No Issue, Parents, Siblings: 100% SP 1 Child: ½ SP (child gets ½ SP) 2 or more children: 1/3 SP, (children share 2/3 SP). No Issue, but Parents: ½ SP (1/2 goes to parents). • All Others/Intestate Scheme-if no surviving spouse o (1) Issue; (2) Parents; (3) Issue of Parents; (4) Grandparents; (5) Issue of Grandparents; (6) Issue of Predeceased Spouse (step-children); (7) Next of Kin; (8) Former In-Laws; (9) Former Brother/Sister-In Laws; (10) Escheat. • Per Capita /Representation Problem o PER CAPITA: Make the distribution at the first level someone is living, and give shares to all living people at that generation and to deceased members of that generation who leave issue o PER STIRPES: Make distribution at the first generation or level, even if everyone is dead, so long as they left issue. The issue then step into the shoes of their predeceased ancestor. Wills • Adopted Children o Rule: Adopted Child is always treated as a natural child of the adopting parents. o Adopted child severs the relationship with the natural parents. Exception: the relationship is not severed if the adoption is by the spouse of the natural parent, or after the death of either of the natural parents. o Equitable Adoption= arises when the parties hold themselves out as parent and child. • Stepchildren & Foster Children o Rule: The child is treated as having been adopted if 3 elements are satisfied: (1) relationship began during the child’s minority; (2) continued throughout the parties’ lifetime; (3) stepparent or foster parent would have adopted but for a LEGAL BARRIER (biological parent does not consent to the adoption) • Non-Marital Children: In California, marital status of the parents is irrelevant. • Half Bloods o = relatives who have only 1 common parent, and not 2. (i.e. half-siblings) o Relatives of the half blood inherit the same as the whole blood. Distribution of the Estate: Who Takes? • Posthumous Children o = a child conceived during the lifetime fo the intestate or testator, but born after the death. o Posthumous children are deemed heirs of the intestate and beneficiaries of the testator’s will. • Lapse & Anti-Lapse o LAPSE: if the beneficiary does not survive the testator, the beneficiary’s gift lapses, or fails. Thus, if a gift lapses, unless a contrary intent is expressed in the will, the gift falls into the residue. (if no residue, goes to intestacy). o CAL’S ANTI-LAPSE STATUTE: Applies only if the devisee who predeceased the testator was “kindred”: of the testator, or kindred of the spouse (predeceased, former, or surviving). The issue of that predeceased devisee will step into the shoes of that predeceased devisee. Kindred= blood relative of Testator (or of Testator’s spouse). Devisee cannot be the Spouse!!! (spouse’s kindred don’t step into her shoes. But you can leave to kindred of spouse, and their shoes can get filled if they predecease) • Simultaneous Death o Simultaneous Death: if you cannot tell by clear & convincing evidence who survived who, then devisee is deemed to have predeceased the testator, and the devisee will not take. o Joint Tenancy: if you cannot tell who died first, you SEVER the JT: ½ JT goes to A’s estate, ½ JT goes to B’s Estate. o Husband & Wife: CP & QCP will be severed; ½ to H’s estate, ½ to W’s estate. o A life insurance policy: if there is no alternative beneficiary, the policy proceeds are paid to the Insured’s Estate. o Intestate: 120 Hour Rule: for any heir to take, the heir must survive the intestate by 120 hours. (120 Hour Rule does not apply if property would escheat). Distribution of the Estate: What does the Beneficiary Take? • After Acquired Property o =property acquired after the will was executed. o After acquired property passes all property the testator owned at death, including after acquired property. • Increase During Testator’s Lifetime Wills o Rule: stock dividends or splits paid during testator’s lifetime go to the beneficiary if the stock is owned by testator at testator’s death. (similar to Tracing) • Increase After Testator’s Death and During Probate o Regarding specific devises, all increaee goes to the beneficiary. o Examples: stock dividends, stock splits, rents, cash dividends, interest on indebtedness • Abatement o =process by which certain gifts are decreased o Arises when you have an omitted child or spouse, there will almost certainly be the related issue of abatement. o Order of Abatement (1) First abate property not passing by decedent’s will or revocable trust. (2) then abate from all beneficiaries of testator’s will and revocable trust pro rata, in proportion to the value of the gift received. o An estate is valued at $90k. Testator had 3 children: A, B, & C. A & B were provided for in the will and given $45k each. Child C was pretermitted. C’s intestate share is $30k (1/3 of $90k). A and B will have their gifts abated by $15,000 each. o No distinction is made between specific, general, and residuary gifts (Exception: the court can exempt the specific gift if abating the specific gift would defeat the obvious intention of the testator. o (if Testator died before 1998, revocable trusts were not included) • Exoneration o = the Debt is extinguished. o At common law, if the testator devised a specific gift subject to an encumbrance for which testator was personally liable, the executor was required automatically to pay off the debt before passing the property to the beneficiary. o California View: the devisee takes the specific gift subject to the encumbrance, unless the testator’s will states that the specific gift is to be exonerated. o A general direction “to pay all my just debts” is not sufficient to exonerate. IF the gift is exonerated, other specific gifts do not abate. Will Substitutes • Gift Causa Mortis o = gift made in contemplation of imminent death. o ***Can be Personal Property ONLY! No gift causa mortis for real property. o Donor Must make Delivery of the property to the donee (1) Acutal Delivery/Manual Delivery (2) Symbolic Delivery (bank document) (3) Constructive Delivery • Traditional View: literal or figurative key • Modern view: a constructive delivery will be found whenever the donor has done everything possible to effectuate a delivery. • Totten Trusts o = tentative bank account trust, whereby the named beneficiary takes whatever is left in the account at death of the owner of the account. o Depositor/Trustee ownes the account during his lifetime and owes the named beneficiary NO FIDUCIARY DUTY whatsoever. (He can empty it out and leave nothing left if he wants.)