Wills & Trusts Crib Sheet for the California Bar Exam


EXECUTION OF WILLS

Attested: Requires (i) writing; (ii) signed by T; (iii) in presence of two Ws; (iv) W’s sign will understanding that instrument is T’s will. In CA: W’s don’t have to sign in presence of ea other or in presence of T. T doesn’t have to publish that this is his will. Ts and Ws can sign anywhere. Substantial compliance Doctrine: deemed valid so long as no issue of fraud or mistake. Holographic: (i) Signed by T and (ii) material provisions in T’s handwriting. Ex Ev ok to prove T’s intent. Date not required, but may present inconsistency or capacity issues. Interested Ws: unless two disinterested Ws present, presumption that interested W secured gift by wrongdoing. N/A if interested W is a fiduciary.

Intent: Capacity: T must be > 18 years old; able to understand extent of T’s property; know the natural objects of their bounty (e.g. beneficiaries); know the nature of his act. If no capacity  will is invalid. Insane delusion: T had false belief that was a product of a sick mind; no evidence to support that belief; delusion affected T’s will. Pt affected by delusion is invalid and will go to residuary or intestate. Fraud: Representation of material fact known to be false by wrongdoer for the purpose of inducing action or inaction and in fact induces action desired. Fraud in Execution: T’s sig forged or T given doc that he believes isn’t testamentary  entire will invalid. Fraud in Inducement: Wrongdoer’s representation effects contents of T’s will  only effected part is invalid. Fraud in preventing T from revoking: misrep or lie leads T not to revoke. Undue Influence: Prima Facie Case: (i) Susceptibility; (ii) Opportunity; (iii) active participation; (iv) Unnatural result. Presumption: (i) Confidential relationship; (ii) Active Participation; (iii) unnatural result. Only affected part is invalid. Statutory Undue Influence: Donative transfer invalid if transferred to person that drafted instrument or drafter’s family; person who has fiduciary relationship and transcribed the instrument; care custodian of dependent adult. UNLESS: T is related to drafter; reviewed by indy atty, or ct finds that no wrongdoing occurred. Consequence  transferee doesn’t take if gift exceeds person’s intestate share.

REVOCATION

Subsequent Will: express or implied (Will #2 totally disposes T’s estate). Revival: If #2 is revoked later, #1 isn’t revived unless T manifests specific intent to revive through oral stmts at time of #2’s rev or if codicil revoking #2 so states. Physical Act: burn, tear, cancel (cross out), destroy, obliterate (erase). Act and intent must be simultaneous. Interlineations: must still satisfy req’ts of attested or holo will. No DRR if interlin is less than cancelled provision; DRR ok if interlin is more than cancelled provision. Cancellation: doesn’t increase gift but goes to residuary if no bene is specified. Operation of Law: result of a pretermitted spouse or child; final dissolution of marriage.

Dependent Relative Revocation: disregards revocation (physical act or subsequent instrument) caused by mistake. Req’ts: T revokes will in mistaken belief that a substantially identical will or codicil effectuates T’s intent. By operation of law, rev of the first is deemed conditional, dependent and relative to second will effectuating T.s intent. NOTE: if second will is invalid b/c of fraud or execution, then revocation of first is invalid too, and #1 was never revoked.

Prevention of Revocation via K: Material provisions of K in will; will expressly references K; c&c ev of agmt enforceable in equity; c&c ev of agmt for the benefit of claimant that is enforceable in equity.

COMPONENTS OF WILLS

Integration: determines what makes up will. Look for staples, numbered pgs. Incorp by Ref: (i) Doc or a writing; (ii) in existence when will was executed; (iii) doc clearly id’d in will; (iv) T intended to incorporate doc into will (assumed if 1-3 are proven). Facts of Indy Significance. Without will, fact would have existed. §6132: if death after Jan 1, 2007, writing can be testamentary if writing is referred to in will, dated, and signed or handwritten OR if ex ev esta T’s intent. Writing describes items and recipients with reas certainty and directs disposition of personal property of <$5K, and >$25K in aggregate.

Pour over wills: T devises all assets into inter-vivos trust. Valid through incorp by ref; independent sig; or Uniform Testamentary Additions to Trusts Act if trust valid before or at time of will’s execution.

Codicils: modify, amend or revokes will. Codicil republishes will (re-dates). Effect on Revocation: If T executed will, then codicil, then revokes codicil  rebuttable presum that T intended only to revoke codicil. If T executes will, then codicil, then revokes will  rebuttable presum that both will and codicil are revoked.

INTERPRETATION OF WILLS

Choice of Laws: Probate in CA if: compliance with CA law; law of st of execution; law of place where T was domiciled at time of execution.

Mistake: Mistake in Content: if omission, no judicial remedy b/c cts won’t rewrite. If addition, remedy possible b/c ct is just crossing out. Mistake in execution: no probate if no intent, unless reciprocal or mutual will. Mistake in Inducement: no relief unless both mistake and what T would have done are expressed on will. Mistake in Description: Latent (on face, will looks ok)  introduce parol ev to establish ambiguity and T’s intent. Patent (on face will is invalid)  CL: no remedy; Mod: Use parol ev.

Lapse: Bene must survive T. Anti-Lapse Statute: if predeceased is T’s blood relative and leaves issue, then issue will step into shoes of predeceased and take, absent contrary provision.

Ademption: Specific devise (unique); General devise (payable out of general assets); Demonstrative devise (from particular source, but if not enough, from general property); Resudiary devise (all the leftovers. Ademption by Extinction: only specific gifts. If T doesn’t own specific property, then specific gift is adeemed by extinction, unless securities change form; conservator sells off assets (bene will take net sale price) or eminent domain, casualty or installment sale. Ademption by Satisfaction: may satisfy a general or demonstrative gift. Reqt’s: will provides for deduction of inter vivos gift; T declares contemporaneous writing that gift is a satisfaction; bene acknowledges in writing the satisfaction; prop given in satisfaction is the same as the gift in the will.

DISTRIBUTION ISSUES

What passes?After acquired prop and increases during T’s life, e.g. dividends and splits, will go to intended bene. Btwn death and probate, specific devises will go to bene; general devises don’t get increase.

Abatement: increase or decrease by operation of law. To satisfy pretermission, abate by: property not passing by will or trust; all bene’s pro rata. To satisfy gen debt, abate by: intestate prop; residuary gift; gen gift to non-relative; GG to relative; specific gift to non-rel; SG to rel.

Exoneration: extinguish debt on gift. CL: T is personally liable and executor must pay off debt before passing to bene. CA: no automatic exoneration, even “to pay all just debts” will not do. T’s will must state that specific gift is to be exonerated.

INTESTATE SUCCESSION

Order if no SS: Issue; Parents; Siblings; Grandparents; Aunts and Uncles; Step-kids; Next of kin; Parent in laws; sibling in laws; escheat. Distribution: § 240 – issue of same degree take “per capita” starting at first level where there is a living being. Strict per stripes – distribution at first level so long as there is issue.

Adoption: adopted kids treated as natural kids. Natural parents’ relationship severed at adoption unless spouse of natural parent adopts. Equitable adoption: parties hold out as parent/child. Stepkids/Foster kids: treated as adopted if: relationship began during minority; con’d throughout parties’ life; and esta by c&c evidence that they would have adopted but for a legal barrier.

Non-Marital Kids: If DP, non-birthing parent is parent if child born during DP; non-birthing DP named on birth certificate or makes voluntary promise to pay child support.

Advancements: inter vivos down payment made by intestate to heir apparent – same result as satisfaction. Intestate declares in writing that gift is advancement and heir acknowledges gift as advancement.

Simultaneous Death: T and Devisee die simul  devisee deemed to predecease T. If JT  sever JT and ea get ½. If H&W  CP and QCP divided in half. Life insurance  alternative bene or residuary. Heir must survive for 120 hours to take.

RTS OF SURVIVING SPOUSE AND CHILDREN

Omitted Child: child born after testamentary instruments are executed and not provided for  child will get intestate share plus share of assets in trust. Exception: omission intentional on face of instrument; T had a child and transferred assets to parent of omitted child; child provided for outside of testamentary instrument, e.g. annuity.

Omitted Spouse/DP: same as child, but go through CP/QCP rules. Except: intentional; provided for in alternative; spouse signed waiver. Waiver: voluntary relinquishment of known right whether signed before or during marriage. Req’ts: waiver in writing; full disclosure of decedent’s finances; indy counsel by waiving spouse. Not invalid if spouse had or should have had knowledge of finances or if waiver was in fact fair. No enforceability if waiver was unconscionable.

BARS TO SUCCESSION

Homicide: requires conviction or, in all other cases, probate court determines guilt by preponderance of ev. Killer deemed to predecease so that killer nor issue take. Elder Abuse. No contest clause: enforced unless bene, with reasonable cause, brings contest on grounds of forgery, rev, or invalid transfer.

WILL SUBSTITUTES

Gifts Causa Mortis: gifts made in contemplation of imminent death. Donor must make delivery by actual delivery; symbolic delivery (something representative of prop is given to donee; constructive delivery (CL: key providing access to corpus OR Mod: donor has done everything possible to effectuate delivery & no fraud or mistake).

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