Law School Outline - Wills Outline

Study Guide for WILLS Wills Outline Table of Contents TABLE OF CONTENTS ....................................................................................................................................... - 1 1. I. EXECUTION OF WILLS .......................................................................................................................... - 2 1.1 1.2 2. CA STATUTE ..............................................................................................................................................- 2 RULES AND REQUIREMENTS .......................................................................................................................- 2 - REVOCATION ............................................................................................................................................... - 4 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 REVOCATION BY PHYSICAL ACT .................................................................................................................- 4 REVOCATION BY PROXY .............................................................................................................................- 4 WILL PLUS INCONSISTENT LATER DOCUMENT .............................................................................................- 4 DIVORCE FOLLOWING A WILL .....................................................................................................................- 5 HOLOGRAPHIC CHANGE TO HOLOGRAPHIC WILL .........................................................................................- 5 HOLOGRAPHIC CHANGE TO TYPEWRITTEN AND FORMALLY EXECUTED WILL ..............................................- 5 DOCTRINE OF DEPENDENT RELATIVE REVOCATION (DRR) .......................................................................- 5 REVOCATION OF A REVOCATION .................................................................................................................- 6 - 3. INCORPORATION BY REFERENCE: FACTS OF INDEPENDENT SIGNIFICANCE ..................... - 6 3.1 3.2 EXTRINSIC DOCUMENT BY REFERENCE ......................................................................................................- 6 MODIFICATION OF WITNESS BY ACTION ......................................................................................................- 6 - 4. LAPSE, ADEMPTION, EXONERATION OF LIENS ............................................................................... - 7 4.1 4.2 4.3 4.4 4.5 LAPSE .........................................................................................................................................................- 7 CLASS GIFT RULE .......................................................................................................................................- 7 RESIDUARY ESTATES ..................................................................................................................................- 7 CLASSIFICATION AND HANDLING OF GIFTS ................................................................................................- 8 ADEMPTION ................................................................................................................................................- 8 EXCEPTIONS TO THE “P LAIN MEANING RULE” .........................................................................................- 10 - 5. AMBIGUITIES AND MISTAKES ............................................................................................................. - 10 5.1 6. INHERITANCE............................................................................................................................................ - 10 6.1 6.2 6.3 INTESTACY RULES ....................................................................................................................................- 10 DIVISION ..................................................................................................................................................- 10 C. STATUS OF CHILDREN ..........................................................................................................................- 11 - More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 1 of 16 Study Guide for WILLS Wills Outline 1. 1.1 I. 1.1.1 EXECUTION OF WILLS Formally Attested Will a. 6 requirements i. Testator must be 18 years or over ii. Testator must execute the will with testamentary intent iii. Testator must sign the will (liberally construed) (1) Signature may appear anywhere on the will (2) Any mark – initials, “X,” or signature by someone else at Testator’s direction, in Testator’s presence is adequate iv. Testator must sign the will in the joint presence of 2 attesting witnesses (1) Failing that, Testator can acknowledge the previous signature or will in joint presence of witnesses (order of signing) (a) “This is my signature” or “This is my will” v. Who KNOW the instrument is a will Holographic Wills a. Most States: Not allowed unless 2 attesting W’s b. CA: Handwritten document is valid if: i. Signed by Testator ; and ii. Material provisions are in Testator’s handwriting (1) Material Provisions – Identity of Property and of Beneficiary c. CA does not require holographic wills be dated, but if not dated, it will be presumed to have been executed before any other will found at Testator’s death i. Consequence – if there is a conflict b/w the two docs, the non-holographic will is presumptively later, and it controls d. Pre-printed will form – Testator lists property and intended beneficiaries, signs i. Valid b/c material terms – listed property and intended beneficiaries (1) Missing definitive stmt of intent the will have effect as such b/c it’s pre-printed (2) CA allows testamentary intent to be found in execution of pre-printed document e. Note to lawyer instructing him make a change in will i. Intended only to instruct lawyer to make change, so NOT adequate to change will because it lacks requisite testamentary intent Codicil a. Second document that alters or adds to a will i. A second instrument that does NOT contain a residuary clause is presumptively a codicil ii. A codicil must also comply with the formal attestation or holographic will requirements to be valid iii. Revocation of a will also revokes any codicils to it iv. Revocation of a codicil does NOT revoke the will. Rather, it revives the original terms of the will as if the codicil never existed CA STATUTE 1.1.2 1.1.3 1.2 RULES AND REQUIREMENTS 1.2.1 Doctrine of Integration a. A will consists of all pages physically present that were intended to be a part of the will at the time the will is signed by Testator and witnesses (EVEN if Testator fails to sign signature page, if signature is on other pages) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 2 of 16 Study Guide for WILLS Wills Outline b. Intent shown by i. Physical connection – staple, paperclip; or ii. Logical connection – pages together or all found together in a safe place 1.2.2 Supernumary Rule a. The fact that a 3d witness did not comply w/ execution statute is immaterial so long as 2 other W’s did comply Order of Signing a. The order of signing is not critical when execution ceremony is part of one continuous, contemporaneous transaction i. Testator need not sign first (1) If W1 was not present when W2 signed, immaterial if Testator acknowledged W1’s signature in the presence of W2 Presence Requirement a. Screen b/w testator and witnesses, Ws hear Testator say he is signing his will but don’t see Testator do it, subsequently see signature and sign as Ws i. Scope of Vision test (minority) – only allowed if Ws can see w/o impediment Testator signature on will ii. Conscious presence test (majority & CA) – if witness and Testator are conscious of where each other is and what each other is doing, the will is valid What Jurisdiction Controls? a. CA will give effect to a will executed in another state that doesn’t meet CA statutory requirements if one of 3 things is present: i. The will complies with law of place of execution ii. The will complies with the law of the decedent’s domicile at death iii. The will complies with the law of decedent’s domicile at the time of execution Interested Witness a. Attesting witness who takes under the will i. Interested witness does not result in denial of probate – the will is valid ii. In absence of 2 other disinterested attesting Ws, there is a rebuttable presumption that the W-beneficiary exerted undue influence iii. If presumption not rebutted, W-beneficiary takes the lesser of what she is given under the will or what she would have taken had the will not been executed (1) Comparison can be to the prior will or to no will at all, depending upon whether there was a previous will (2) If Testator revoked previous will by physical act, then the first will is ineffective and Testator dies intestate w/ regard to the W-beneficiary (though the rest of the will is valid) Proof of Wills a. Oath of any one attesting witness taken before circuit judge or court clerk b. If Ws cannot be located or are incompetent, oath of personal representative that he believes the writing is the decedent’s last will Self Proved Wills a. At the time the will is signed by Testator and attesting Ws, or sometime thereafter w/in Testator’s lifetime, Testator and witness sign self-proving affidavit under oath before notary public b. Affidavit recites all elements of due execution c. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) are conclusively presumed 1.2.3 1.2.4 1.2.5 1.2.6 1.2.7 1.2.8 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 3 of 16 Study Guide for WILLS Wills Outline 2. 2.1 REVOCATION REVOCATION BY PHYSICAL ACT 2.1.1 Requirements a. Intent to revoke b. Physical act that touches and destroys some language of the will (the text) c. An act of revocation on one executed copies revokes all executed copies i. CA – burned, torn, cancelled, obliterated, destroyed, or any synonym that touches some of the language of the will Compare: i. “Void” written on front & lines drawn across front of 1 of 2 originals (1) “Void” helps show intent to revoke, but not alone enough (2) Crossing out – drawing lines is enough of an act ii. “Void” written on back of will – NOT enough (1) Intent, but no act that touched some of the language of the will iii. “I cancel this will” written in margin (1) Express revocation, but NOT revocation by physical act iv. “Void” written on a photocopy (1) Act must be taken with respect to an executed will, not a picture of the will Presumption i. Will last seen in competent Testator’s possession, but not found after Testator’s death is presumed destroyed 2.1.2 2.1.3 2.2 REVOCATION BY PROXY 2.2.1 Revocation by another person must be: i. Done at Testator’s direction ii. In Testator’s presence (1) If proxy destroys will, but not in Testator’s presence, will is still valid and effective and still can be probated by satisfying the “lost wills” requirements: (a) A copy and one witness to original, or other clear and convincing proof of the will iii. Where attorney messes up revocation or execution of will, mention potential TORT liability of attorney to would-be beneficiaries 2.3 WILL PLUS INCONSISTENT LATER DOCUMENT 2.3.1 Codicil that does not expressly revoke prior will i. Where codicil makes no reference to a will but contains slightly inconsistent provisions, to the extent possible, the will and codicil are read together ii. To the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will Second will that does not revoke prior will i. If the second will has no residuary clause, it is presumptively a codicil to the first; implied revocation only to the extent of inconsistencies ii. If the second will has a residuary clause, prior will is revoked (1) Recall - If Testator dies w/ 2 instruments, and one is un-dated holograph, the holograph is presumed to have been executed before the other instrument Absent contrary intent, revocation of a will revokes all codicils thereto i. But, revocation of a codicil to a will does not revoke the will ii. Original provisions of the will are presumptively revived 2.3.2 2.3.3 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 4 of 16 Study Guide for WILLS Wills Outline 2.4 DIVORCE FOLLOWING A WILL 2.4.1 Divorce revokes all provisions in favor of the ex-spouse i. Construe the will as if the ex-spouse were dead (1) Revokes rights of ex-spouse in inter vivos trusts (2) Does not affect life insurance policy ii. If Testator and ex remarry – ex is back in the will Separation – rights not affected unless: i. Separation with complete property settlement – i.e., divorce settlement agreement – conclusive as to waiver of each other’s rights in their trusts or wills 2.4.2 2.5 HOLOGRAPHIC CHANGE TO HOLOGRAPHIC WILL 2.5.1 Any alteration by Testator is effective i. Crossing out ii. Interlineation adding new Beneficiary or changing what Beneficiary takes iii. Testator need not sign or initial the change 2.6 HOLOGRAPHIC CHANGE TO TYPEWRITTEN AND FORMALLY EXECUTED WILL 2.6.1 2.6.2 Crossing out text revokes that part Interlineations are not effective unless i. The will is re-executed OR ii. Interlineation is signed and constitutes a complete disposition OR iii. Testator executed a codicil that meets will statute = republication of will w/ changes 2.7 DOCTRINE OF DEPENDENT RELATIVE REVOCATION (DRR) 2.7.1 Purpose Allows us to disregard a revocation and reinstate the original will if the revocation is based on, induced by, or premised on mistake of law or fact 2.7.2 2.7.3 Burden of Proof The court must be satisfied that, but for the mistake, Testator never would have revoked Effect of DRR on Will Disregard revocation, provided the court thinks Testator would not have revoked the original gift but for the mistake 2.7.4 Mistake MUST appear in revocation i. Testator thinks crossing out & interlineation on a typewritten will is effective to increase gift to Beneficiary, when in fact, interlineation not effective because Testator didn’t sign it ii. If ineffective gift is larger in amount, apply DRR iii. If ineffective gift is smaller, discuss DRR but don’t apply it – Beneficiary gets $0 Other DRR situations i. Testator executes Will 1. Testator then defectively executes Will 2. Will 2 is similar to Will 1. Under mistaken belief that Will 2 is valid, Testator destroys Will 1. Will 1 is reinstated (1) Will 1 reinstated b/c revocation based on mistake of law – that Will 2 was valid (2) But for the mistake, Testator never would have destroyed Will 1. ii. Testator executes Will 1. Testator then defectively executes Will 2. Under mistaken belief Will 2 is valid, Testator writes and signs on the back of Will 1 “Will 1 is hereby revoked. I have made a new will.” (1) Express revocation of Will 1 can be set aside under DRR b/c mistake appears in the terms of the revocation itself 2.7.5 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 5 of 16 Study Guide for WILLS Wills Outline iii. Testator executes Will 1. Testator then defectively executes Will 2. Under mistaken belief Will 2 is valid, Testator writes & signs on back of Will 1 “Will 1 is hereby revoked.” As he does this, Testator remarks to another person that he has executed a new will. (1) Express revocation of Will 1 cannot be set aside under DRR because mistake does not appear in the terms of the revocation itself Testator revokes Will 1 b/c believes Beneficiary is dead, executes Will 2, including stmt, “If Beneficiary were alive, I would leave…” Beneficiary is actually alive. Will 1 is reinstated. (1) Mistake of fact & but for mistake, Testator never would have revoked W1 or executed W2 iv. 2.8 REVOCATION OF A REVOCATION 2.8.1 Reinstatement of prior will – effective if: i. Will 1 still exists ii. Can prove Testator wanted Will 1 revived iii. Will 2 was revoked by physical act (1) Testator executes Will 1. Testator then duly executes Will 2 with different provisions and expressly revokes Will 1 in Will 2. Testator changes his mind, tells a person that he thinks Will 1 is how he wants his will to read, and Testator destroys Will 2 with the intent of reviving Will 1. Revocation of the revocation of Will 1 by destroying Will 2 effective b/c Will 1 still exists, witness can testify that Testator intended to revive Will 1, and Will 2 was destroyed with intent to revoke it 3. 3.1 INCORPORATION BY REFERENCE: FACTS OF INDEPENDENT SIGNIFICANCE EXTRINSIC DOCUMENT BY REFERENCE 3.1.1 Incorporation by reference of an extrinsic document a. Writing must have been in existence at the time the will was executed b. Will must manifest an intent to incorporate the document c. Will must describe the writing sufficiently to permit its identification i. Must include date, title, etc., but courts are not strict about this ii. Emphasize – if memo found in the same envelope w/ the will, it’s probably safe d. Holographic wills can incorporate non-handwritten material by reference 3.2 MODIFICATION OF WITNESS BY ACTION 3.2.1 Doctrine of independent significance a. Acts having an independent lifetime motive may impact on the will as well i. As long as there is a lifetime motive for Testator’s act, it is given effect (1) Testator’s will devises car to Beneficiary; Testator later buys a more expensive car. Beneficiary takes the new car (2) Testator’s will devises $1K to employees in employ at his death. Fires longtime employees, hires new ones – new ones get the $$ Related Area a. Testator devises home and contents to Beneficiary i. Beneficiary takes household furnishings and art ii. Beneficiary does NOT take stocks or savings accounts where certificates and passbook found in house iii. Beneficiary does NOT take car in garage iv. ONLY those things that make a house a home 3.2.2 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 6 of 16 Study Guide for WILLS Wills Outline 4. 4.1 LAPSE, ADEMPTION, EXONERATION OF LIENS LAPSE 4.1.1 Predeceasing Beneficiary When Beneficiary named in a will dies before Testator , the gift lapses and passes as a part of the residuary estate 4.1.2 Anti-Lapse Statutes a. ALS results in pre-deceasing beneficiary’s gift going to Beneficiary’s issue b. If Beneficiary predeceases Testator , the gift will not lapse if saved by the state’s anti-lapse statute c. CA anti-lapse statute applies ONLY when predeceasing beneficiary is a relative of Testator (or of Testator’s current or former spouse) who leaves issue who survive Testator i. Beneficiary’s issue take the gift on Testator’s death (Beneficiary’s children or grandchildren) (1) Beneficiary’s will devises property to H. Testator’s gift to Beneficiary does not go to H – statute says it goes to ISSUE (2) If Beneficiary is NOT a relative of Testator , Beneficiary’s issue DO NOT take Beneficiary’s share ii. If will says “To Beneficiary, if she survives me,” the gift lapses if Beneficiary predeceases Testator (1) Condition precedent to taking under the will is that Beneficiary survives longer than Testator d. Related Areas i. ALS also applies when: (1) Testator’s will exercises power of appointment in favor of Beneficiary (2) Beneficiary is the named beneficiary of Testator’s insurance policy (3) Beneficiary is beneficiary of Testator’s revocable inter vivos trust 4.2 CLASS GIFT RULE 4.2.1 4.2.2 What is a Class? The test if often said to be whether the testator is “group minded.” Effect on Will When there is a gift by will to a group of persons generally described as a class (children, nephews, nieces, etc.) and some class member predeceases Testator and the anti-lapse statute does not apply, the surviving class members take Ex: “To the children of my friend Brandi.” If one of Beneficiary’s children predecease Testator with issue, the issue of the predeceasing child take nothing. HOWEVER, the issue would argue that the “class” identified in the will was actually intended to identify specific persons, including the issue’s parent Class of All Relatives If the class is a group of relatives of Testator , ALS applies and issue of predeceasing class members take under the will Ex: “To children of my brother Michael.” If one of M’s children predecease Testator with issue, then issue of that child take what the child would have taken 4.2.4 Known Death of Class Member If a member of the class is dead and Testator knows it at execution, ALS does not apply to devise the gift to issue of the predeceasing class member 4.2.3 4.3 RESIDUARY ESTATES If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devisees take the entire estate in proportion to their interests in the residue More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 7 of 16 Study Guide for WILLS Wills Outline Ex: “To my friend Robbie, to my business partner Brian, and my brother Michael,” i. If Robbie predeceases Testator , leaving a child, the child does not take. (1) Robbie’s share goes to residuary (2) Brian and Michael each take the entire residuary estate in proportion to their interests in the residue. ii. If brother Michael predeceases, leaving a child, the child takes Michael’s ⅓ share 4.4 CLASSIFICATION AND HANDLING OF GIFTS 4.4.1 Classes 4.4.1.1 Specific devise or bequest i. Devise specific, described property (1) My 1994 Miata to Sandy ii. Will speaks as of the time of Testator’s death, so the will at Testator’s death will refer to a specifically identifiable asset (1) My car, or the money on deposit in my savings account, to Sandy 4.4.1.2 Demonstrative Legacy i. Pecuniary amount with instructions as to where the money is to come from (1) $5K from sale of Acme stock to Darin (2) $5K from my savings account to Darin 4.4.1.3 General Legacy i. Pecuniary amount (1) $10K to Greg 4.4.1.4 Residuary Bequest i. All the rest, residue, and remainder of my property to Robert 4.4.1.5 Intestate Property i. Partial intestacy for some reason (i.e., residuary beneficiaries predecease testator, and the case is not covered by ALS) 4.4.2 Handling on Testator’s Insolvency 4.4.2.1 Abatement i. If Testator’s estate is partially insolvent, satisfy debts and expenses of the estate by sacrificing the gifts from the bottom up (intestacy, residuary, general legacy, demonstrative legacy, specific devise) ii. Gifts to non-relatives abate before gifts to relatives 4.5 ADEMPTION Specific devise Testator sells property before death that Testator specifically devised in the will, the gift is adeemed because the property no longer exists Demonstrative Legacy Testator sells the stock from which the pecuniary amount was to be obtained, the gift is to be funded from other sources (general legacy) 4.5.3 Incompetence of Testator Will executed before incompetence of Testator i. Specifically devised property is sold by conservator, or condemnation award or insurance proceeds relating to property are paid to the conservator ii. Specific devisee is entitled to a general legacy equal to the net sale price, condemnation award, or insurance proceeds iii. UNLESS Testator’s disability has been adjudicated to have ceased (he’s now competent) and Testator survives the adjudication by one year 4.5.2 4.5.1 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 8 of 16 Study Guide for WILLS Wills Outline (1) Testator duly executes a Will leaving his car to Beneficiary. Testator is declared incompetent; conservator sells his car and the money is paid to the conservator. Beneficiary has a right to the net sale price unless court deems Testator’s disability has ended and Testator survives adjudication of competence by a year (2) Policy – events occurring after Testator becomes incompetent should not affect the will 4.5.4 Specifically devised property is altered or no longer in the estate at Testator’s Death (1) A specific devisee is entitled to the remaining specifically devised property and: (2) Any balance of purchase price owing from purchaser of specific devise when the K is still executory at Testator’s death (includes land) Ex: Testator sold specifically devised car, but purchaser still owes $500. Beneficiary gets $500 Ex: Testator sold specifically devised property, purchaser still owes $100K. Beneficiary gets $100K 4.5.5 Condemnation Awards Any amount of condemnation award for taking of the specific property, to the extent unpaid at Testator’s death. 4.5.5.1 Specifically devised property condemned by state Beneficiary gets remaining unpaid eminent domain award 4.5.5.2 Insurance Proceeds Any amount of fire or casualty insurance proceeds for loss of specific devise unpaid to Testator at death. But, if insurance proceeds were already paid to Testator before death, Beneficiary does not get. 4.5.6 Foreclosures Property acquired as a result of foreclosure of a security interest on a specifically devised note Ex: Testator loaned money to A; specifically devised the note to Beneficiary. A never paid Testator , Testator instituted foreclosure against A’s security interest. Beneficiary gets security interest 4.5.7 Securities Securities of the same organization acquired as a result of a plan of reinvestment where original securities were specifically devised Ex: Testator’s will gives his 100 shares of MFS to Beneficiary. Stock splits before Testator dies & Testator has 200; Beneficiary gets all 200 shares Same rule for securities under revocable trust, securities passing as a result of a payable on death or transfer on death beneficiary designation 4.5.8 Securities of Another Entity Securities of another entity owned by Testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity Ex: Testator’s will gives his 100 shares of IMB to Beneficiary. IBM sells to HP, HP issues HP stock to Testator to replace IBM. Beneficiary takes the HP stock. Same rule for securities under revocable trust, securities passing as a result of a payable on death or transfer on death beneficiary designation 4.5.8.1 Note NOTE: Distinguish “My 100 shares of IBM stock” from “ 100 shares of IBM stock” “MY” 100 shares = a specific gift. Adeemed if the stock is sold before Testator’s death 100 shares is not a specific gift, but rather a gift of the value represented by the shares to be paid in kind. Executor takes cash from estate and buys shares needed to fund the gift. If the shares are impossible to acquire (i.e., closely held corp, no market for the shares), the gift is deemed specific and is adeemed Encumbered Property (Mortgaged Land) Specific devise of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. A general direction in the will to pay debts does not show such intent More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore 4.5.9 Page 9 of 16 Study Guide for WILLS Wills Outline 5. AMBIGUITIES AND MISTAKES Bottom Line: CA courts will admit extrinsic evidence to explain mistakes and ambiguities IF evidence shows intent consistent with a reasonable interpretation of the words used. This is contrary to the majority rule where NO extrinsic evidence is allowed if the plain meaning can be adduced, even if evidence points to error!! 5.1 EXCEPTIONS TO THE “PLAIN MEANING RULE” 5.1.1 Latent Ambiguities Extrinsic evidence is admissible to clear up latent ambiguity. In the absence of extrinsic evidence to clarify a devise with latent ambiguity, the gift fails. If the devise looks valid and proper in the will, but upon application, problems figuring out what Testator meant. Ex: Testator mixes up/combines names of 2 different Beneficiary’s who Testator might mean, making it impossible to tell which person Testator meant. 5.1.2 Mistakes Extrinsic evidence is admissible to show an intent that is consistent with any reasonable interpretation of the words used. Ex: Testator leaves property to nephew JIP, who he had not seen for years. Nephew JPP argues there’s a mistake; uncle told JPP he intended to and that he had left property to JPP in the will. Stenographer who typed it testifies she made a mistake, corroborates JPP’s evidence. Here, the evidence from stenographer will be admissible. Ex: Testator leaves property to “uncles” but does not state whether “uncles” includes his aunt’s husbands (not legally uncles). Reasonable interpretation is that Testator DID mean to include aunt’s husbands, so extrinsic evidence is admissible to show Testator’s intent. Ex: Court will NOT fill in blanks in a will, however. i.e., Testator’s will contains a clause, “I give $3,000 to ______________” (omitting intended Beneficiary). Secretary testifies A was supposed to receive the money and that she mistakenly left the name out of the will. A gets NOTHING 6. 6.1 INHERITANCE INTESTACY RULES 6.1.1 Share of Surviving Spouse Entitled to half decedent’s half of any CP and Quasi-CP PLUS shares of the decedent’s SP depending upon other survivors: i. ⅓ of SP if decedent is survived by more than one line of lineal descent (more than one child or one child and offspring from predeceasing child) ii. ½ of SP if decedent survived by only one line of lineal descent OR one parent or issue of a parent iii. All of SP if decedent is not survived by descendants, parent, or issue of parent 6.1.2 Share not Going to Spouse a. All to issue, if any b. If no issue, to parents or survivor c. If no issue or parents, to parents’ issue (brothers & sisters of decedent) d. If no issue, no parents, no parents’ issue, to grandparents equally or if none survive, to the issue of grandparents (aunts, uncles) e. If no grandparents or issue of grandparents, to the issue of decedent’s predeceased spouse 6.2 DIVISION Intestate Issue of decedent, decedent’s parents, and decedent’s grandparents. Per capita with right of representation. When all takers are equally related, they all take equal shares. a) If 4 siblings survive decedent, each takes ¼. 6.2.1 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 10 of 16 Study Guide for WILLS Wills Outline b) c) If 1 sibling predeceases w/ surviving issue, and 3 siblings survive, 3 siblings each take 1/4 and the issue of predeceased sibling split his 1/4 share (each get 1/8) If all siblings predecease decedent, leaving different number of issue, the issue each take equal shares. Ex: A leaves 2 issue, Beneficiary leaves no issue, C leaves 3 issue, and D leaves 1 issue – all issue get 1/6 6.2.2 Instructed by Will To “descendants” or “in the manner provided in § 240 of the Probate Code”. Use the same approach as intestacy statute (per capita, right of representation, equal shares if equally related). “Per capita at each generation” or “in the manner provided in § 247 of the Probate Code”. Divide estate into equal shares for each line. First level of each line each gets a whole share. Issue surviving that line divide their predeceasing parents’ share amongst all of that generation equally. Ex: 2 siblings survive Testator and 2 predecease with issue. A takes 1/4 share, Beneficiary takes 1/4 share, Combine C & D’s shares (1/4 + 1/4 = 1/2) and divide equally among C & D’s 5 issue (1/5 of 1/2 = 1/10 each) 6.2.3 Per Sterpes “Per Sterpes” or “to descendants by right of representation” or “descendants in the manner provided in § 246 of the Probate Code”. Divide estate into equal shares for surviving lines of descent. Issue surviving that line divide their predeceasing parents’ share amongst all of that generation equally. Ex: 2 siblings survive Testator and 2 predecease with issue. A takes 1/4 share, Beneficiary takes 1/4 share, C’s 2 children take 1/2 of C’s 1/4 share, D’s 3 children take 1/3 of D’s 1/4 share Probate Estate Intestacy statute only applies to decedent’s probate estate, or that which could have been controlled by the will IF decedent had executed one. Exclude: (1) Life insurance (2) Property held in trust (3) Separate or community property held in right of survivorship form (4) Securities or bank accounts w/ transfer-on-death or payable-on-death designations (5) Property the decedent did not own at death 6.2.4 6.3 STATUS OF CHILDREN 6.3.1 Illegitimacy A man is presumptively a child’s father, and thus inheritance rights attach, if: i. F & M marry or attempt to marry before C’s birth ii. F & M marry (even if voidable) after C’s birth and F is named as father on the birth certificate or F promises or is ordered to pay child support iii. F receives C into his home and holds him out as his natural child; or iv. There is an adjudication of F’s paternity before or after F’s death Stepparents & Foster Parents A child can inherit from a stepparent or foster parent who does not legally adopt the child if: i. Relationship began during minority and continued until parent’s death; AND ii. Clear and convincing evidence that but for a legal barrier, parent would have adopted the child -- Usually, inability to get natural parent’s consent. 6.3.2 Adoption Adopted child inherits from adoptive parents, and vice versa, just as if child was natural child of adoptive parents. But, the adopted child may not inherit by intestacy from natural parents. Exception: Stepparent adoption where natural father dies and stepparent adopts child does NOT sever the familial relationship w/ C’s deceased natural parent’s family. i.e., after F dies, C is adopted by S. C can still inherit by intestacy from F’s relatives 6.3.3 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 11 of 16 Study Guide for WILLS Wills Outline 6.4 SIMULTANEOUS DEATH ACT 6.4.1 Priority of Death When passage of title to property depends on priority of death but there is no clear & convincing evidence the persons died otherwise than simultaneously, the property of each passes as though he survived longer (unless there’s a contrary will provision). i. Wills – As though Testator survived longer and Beneficiary predeceased unless will provides otherwise ii. Intestacy – as though intestate survived longer and heir predeceased. Intestacy requires heir to survive at least 5 days (120 hours) in order to take under the intestacy statute iii. Insurance – as though insured survived and Beneficiary predeceased iv. Joint Tenancy – 1/2 as though tenant A survived, one-half as though tenant Beneficiary survived (simultaneous death prevents operation of RoS), so 1/2 passes through each estate 6.5 LIFETIME GIFTS Advancement on Intestate Inheritance Lifetime gifts to children or descendants are not advancements on intestate inheritance unless: i. Declared as such in a contemporaneous writing by the decedent, or ii. Acknowledged as such in writing by the heir (1) If a gift were an advancement on inheritance, add the value of the gift when given to decedent’s total estate, divide equally among descendants, and subtract the amount of the gift from the gift receiving child’s inheritance Ex: A gives a $12K gift to C1 and indicates in a writing that this is an advancement on C1’s inheritance. A dies intestate leaving $78K in assets in estate. Add $12K to $78K and divide equally among 3 children = $90K/3 = $30K each. C1 gets $30-$12 ($18K); C2 & C3 get $30 each 6.5.2 Satisfaction on Testate Estate Inheritance Lifetime gift is not a prepayment on any interest in a will unless: i. The will provides for such treatment; ii. Testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise; or iii. Devisee acknowledges in writing that the gift is in satisfaction of the devise 6.5.1 7. 7.1 RIGHTS OF SURVIVING SPOUSE WILL WRITTEN BEFORE MARRIAGE Pretermitted Spouse Spouse takes modified intestate share IF issue, parents, issue of parents exist. IF no descendants, parents, issue of parents, spouse’s share of SP capped at ½ UNLESS: i. It appears from the will the omission was intentional OR ii. a) Testator provided for spouse by transfer outside will AND b) The intent that the transfer be in lieu of provision in will can be reasonably inferred from the statements of Testator , amount of the transfer, or other evidence c) Pretermitted spouse’s share is first satisfied from property not disposed of by the will, then by pro rata contribution from all other beneficiaries 7.1.1 7.2 SURVIVING SPOUSE’S FORCED SHARE IN QUASI-CP 7.2.1 Testate CA Domiciliary a. Spouse is entitled to claim a forced share of 1/2 decedent’s quasi-CP b. Q-CP is all property acquired by decedent while domiciled elsewhere that would have been CP if acquired while domiciled in CA c. Widow’s Election requires spouse to renounce all other interests in decedent’s will More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 12 of 16 Study Guide for WILLS Wills Outline 7.3 SPOUSE’S RIGHT TO SET ASIDE INTER VIVOS TRANSFERS OF QUASI-CP a. At election of surviving spouse, transfers of Q-CP by a decedent may be set aside & transferee required to return them to estate for distribution to the spouse as part of the spouse’s intestate, pretermitted, or forced shares. Election applies to transfers during marriage: i. By a CA domiciliary ii. Without consent or joinder of the spouse iii. In right of survivorship form or outright (revocable inter vivos trust) where the decedent retained either the income or possession of the property or the right to consume, invade, or appoint the property to himself b. 7.4 D. WAIVER OF RIGHTS a. b. Rights of a surviving spouse may be waived in a writing signed by the waiving spouse To be enforceable, there must have been: i. Full disclosure of the rights to be waived ii. Surviving spouse must have had independent legal counsel, OR iii. Court determination the waiver is fair, reasonable, not unconscionable 8. 8.1 VIII. PRETERMITTED CHILDREN AND CHILDREN BELIEVED DEAD PRETERMITTED CHILDREN 1. Testate Decedent a. Child born or adopted after the will was executed takes intestate share b. UNLESS: i. It appears from the will the omission was intentional OR ii. Testator had other children when he executed the will and left substantially all of his estate to parent of the pretermitted child OR iii. Testator provided for child by transfer outside will AND Intended the transfer be in lieu of provision in will can be reasonably inferred from the statements of Testator or other evidence (amount of transfer is irrelevant) c. Pretermitted child’s share is first satisfied from property not disposed of by the will, then by pro rata contribution from all other beneficiaries (1) Intentional omission can be inferred from re-publication of the will after C’s birth; codicil re-dates a will to the date of execution of the codicil 8.2 CHILDREN BELIEVED DEAD OR OF WHICH TESTATOR WAS UNAWARE OF BIRTH Common Law Rule No relief for mistake in inducement to make or not make a provision in a will unless both the mistake & what would have been done but for the mistake appear in the will. Ex: Testator declares in will that D gets nothing because D is dead, but if D were not dead, I would leave D $10K. No one does this!! Stupid rule CA only requires mistake and what would have been done but for mistake if mistake is re: something OTHER than birth or death California Statute If at the time of execution of a will, Testator fails to provide in his will for a living child solely because Testator was unaware of the child’s birth or Testator believed the child was dead, child receives intestate share. 8.2.2 8.2.1 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 13 of 16 Study Guide for WILLS Wills Outline Mistake But Not About Birth or Death If Testator leaves D out of the will because of Testator’s mistaken belief that D won the lottery and does not need Testator’s money, back to the common law rule – Testator must declare mistake and what would have been done in absence of mistake in will. Contrast Fraud in the Inducement If Testator’s other heirs lied to Testator to induce him to leave D out of the will, remedy by forming a “Constructive Trust” to take away from the defrauding heirs and give D his share. 8.2.4 8.2.3 9. 9.1 CONDUCT BARRING INHERITANCE HOMICIDE 9.1.1 Lapse A person who feloniously and intentionally kills Victim is not entitled to any benefit from Victim’s estate by will, intestacy, life insurance contract, or otherwise. i. Property passes as if K predeceased V ii. Property held w/ right of survivorship between V and K passes ½ to K and ½ to V’s estate (severs the joint tenancy; K owns ½ interest already) iii. Acquittal at criminal trial is NOT controlling: Apply a civil standard – preponderance of evidence that K killed V iv. ALS inapplicable 9.2 INVOLUNTARY MANSLAUGHTER Involuntary manslaughter DOES NOT exclude K from inheritance 10. 10.1 AGREEMENTS AFFECTING DISPOSITION OF PROPERTY RENUNCIATION Before acceptance, an heir, devisee, or appointee of a power of appointment may renounce his interest in writing in whole or in part w/in 9 months after death of Testator. Results in property passing as if renouncing party predeceased decedent, unless the will provides otherwise. ALS substitutes renouncing Beneficiary’s share to Beneficiary’s issue. 10.2 WILL CONTRACTS A contract to make a will, not revoke a will, or to die intestate can only be shown if: i. Terms in a will itself ii. Terms in a written contract iii. The will refers to the contract and extrinsic evidence proves the terms Mere existence of joint or mutual will does not imply a K not to revoke. Harm from breach occurs at death of BOTH Testator’s b/c if 1st Testator dies in breach, 2nd Testator can change his will in response. 11. 11.1 WILL CONTESTS STANDING Only persons whose share of the estate would be increased if the contest were successful have standing to challenge a will. 11.2 TIME PERIOD Will contests must be brought within 120 days of when the will to be contested is admitted to probate. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 14 of 16 Study Guide for WILLS Wills Outline 11.3 LACK OF TESTAMENTARY CAPACITY 11.3.1 General Requisites Contestants must show: i. Testator did not understand the nature of the act he was doing ii. Testator did not know the nature and character of his property iii. Testator did not know the natural objects of his bounty iv. Testator could not interrelate these factors and form an orderly plan of disposition 11.3.2 California Statute A determination that a person lacks capacity to execute a will or trust must be supported by evidence of a deficit in one of the following that significantly impaired the person’s ability to meet the general requisites above when the will was executed or shortly before or after: i. Alertness And Attention ii. Information Processing (1) Short & long term memory, ability to communicate w/ others, ability to recognize familiar objects & persons, ability to understand quantities & think logically iii. Thought Processing (1) Ability to organize thoughts, no hallucinations or delusions iv. Mood and Affect (1) Presence of a pervasive & persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, indifference, or despair 11.3.2.1 Effect of Adjudication of Mental Incompetence Testator adjudicated incompetent and a guardian appointed for Testator is evidence of Testator’s lack of capacity but is not conclusive. Test for whether a guardian should be appointed is a different test Special Rule for Undated Holographs If Testator lacked capacity during any portion of the period during which an undated holographic instrument could have been executed, the presumption is that the instrument was executed during that period. 11.3.3 11.4 UNDUE INFLUENCE 11.4.1 11.4.2 Undue Influence Defined A will (or will provision) that is the product of undue influence is invalid. Effect on Will Like insane delusion, an undue influence challenge often leaves most of the will alone, invalidating only the tainted provisions. If the influence extends to the whole will, or if the offending gift is so central to the estate plan that the plan collapses without it, the whole will fails. 11.4.3 Factors Considered in Determining an INFERENCE of Undue Influence (SUMO) a. Susceptibility (age, sickness, gullibility, education, all relative to avg person) b. Unnatural Disposition i. C/L = varies at all from intestacy; or ii. Varies substantially from intestacy; or iii. Goes to no family members iv. CA = the will looks unnatural or strange c. Motive (did perpetrator have a motive to exert U.I.?) d. Opportunity (paramour, caretaker, etc.) Factors Considered in Determining a Rebuttable Presumption (CRAPU) a. Confidential Relationship (Priest, Doctor, Lawyer, Family Member maybe) b. Actively Participated in the drafting , procuring or executing c. Unnatural (same test as above) 11.4.4 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 15 of 16 Study Guide for WILLS Wills Outline Duress Where the testator was induced to act by physical or mental coercion, we apply the same analysis as we do for undue influence. 11.4.5.1 Effect on Will Where the execution or revocation of a will or codicil is the product of duress or undue influence, the will or revocation is ineffective. If there is only one devise that is tainted, then that devise will be invalid. But, if the duress effects the entire testamentary scheme, then the whole will is invalid. 11.4.6 Gift to Will Drafter A gift to the drafter of a will or their relative, cohabitant, or employee is void unless: i. Testator is related to or lives with the drafter OR ii. The will is reviewed by a disinterested attorney 11.4.5 11.5 NO CONTEST CLAUSES Clause that causes Beneficiary to forfeit any inheritance if Beneficiary contests the will. These are Valid and enforceable in California. 11.5.1 Exception A no contest clause will not be enforced where the contestant claims with probable cause that: (1) The will has been revoked or that it was a forgery (2) The scrivener, an interested witness, or someone who secured the inclusion of the no contest clause has exerted undue influence More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 322c812d-efe6-4f1a-bed3-8f16defdd0b6.doc Ted Finamore Page 16 of 16