Wills on the California Bar Exam


  1. Intent

    1. Capacity

      1. At the time of execution, testator must: (1) be at least 18 years of age; (2) be able to understand the extent of her property; (3) know the natural objects of her bounty (spouse, issue, parents, etc.); (4) now the nature of her act (that she is executing a will)

      2. Consequences: The entire will is invalid. Property will pass by intestate succession.

Exception: If testator had a valid prior will that was purportedly revoked by the invalid will, then will #1 is probated b/c T did not have capacity to revoke.

    1. Insane Delusion

      1. Elements: (1) T had a false belief; (2) that false belief was a product of a sick mind; (3) there is no evidence to support the belief; (4) delusion must have affected T’s will

      2. Consequence: Only the part of the will which was affected by the delusion is invalid. As to that part, it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, but intestate succession.

    2. Fraud

      1. Elements: (1) representation, (2) of a material fact, (3) known to be false by the wrongdoer, (4) for the purpose of inducing action/inaction, and (5) does induce action/inaction.

      2. Fraud in the execution: someone forges T’s signature OR T signs will thinking it is something else.

Consequences: the entire will is invalid. The property passes by intestate succession unless there is a prior will that was validly executed.

    1. Fraud in inducement: the wrongdoer’s representation affect the contents of T’s will.

Consequences: Only that part of the will that is affected by the fraud is invalid. As to that part, the court has three options:

      1. Give the property to the residuary devisees, if any; or

      2. If there is no residue, to the heirs at law by intestate succession; OR

      3. Make the heirs or devisees a constructive trustee.

    1. Fraud in preventing testator from revoking

Consequences: The court will not probate the will, and thus the property goes to the heirs. Court will also declare the heir a constructive trustee, who has a duty to transfer the property to the intended beneficiary.

    1. Undue Influence – established in three ways – discuss all three

      1. Prima Facie Case: (1) T has a weakness such that he is susceptible, (2) the wrongdoer has access to the T, (3) it is the wrongful act that gets the gift, (4) an unnatural result.

Consequences: Only that part of the will affected by undue influence is invalid. That part goes to (i) the residuary devisee if any, (ii) the heirs at law by intestate succession, or (3) via constructive trust.

    1. Presumption: (1) A confidential relationship exits between the T and the wrongdoer, (2) the wrongful act gets the gift, (3) an unnatural result.

Consequences: same as prima facie case.

    1. Statutory Undue Influence:

      1. California generally invalidates a donative transfer from T to:

        1. A person who drafted the instrument

        2. A person who is related to, married to, or cohabitates w/, or is an employee of the drafter

        3. A person who is in a fiduciary relationship with the T and who transcribes the testamentary instrument.

      2. These rules do not apply if:

        1. The T is related to, married to or co-habitats w/ the drafter

        2. If the instrument is reviewed by an independent atty who counsels T

      3. Consequences: The devisee does not take the gift, but only to the extent the gift exceeds that person’s intestate share. As to the portion that does not pass to the wrongdoer, it passes to the residuary devisee/by intestate succession/via constructive trust.

  1. Mistake

    1. Mistake in content: the wrong beneficiary is named or the wrong gift is made

      1. If words are accidentally left out – no relief is given, courts do not re-write wills (but DRR may be an option)

      2. If words are accidentally added – remedy may be given – ct may strike out extra words

    2. Mistake in execution: the T signs the wrong document

      1. If T sings the will believing it is a non-testemnetary instrument – the will is not probated b/c T did not intend the document to be a will.

      2. It H & W have reciprocal wills and each mistakenly signs the wrong one – court may reform the will and substitute the correct names. Reasoning: it is equitable.

    3. Mistake in inducement: a particular gift is made/not made on the basis of T’s erroneous belief

      1. No relief is given.

      2. Except – one narrow circumstance – when both the mistake and what T would have done but for the mistake appear on the face of the will – then court will give relief.

    4. Mistake in description (ambiguity): No one or nothing fits the description OR two or more persons or things fit the description.

      1. Court will allow introduction of parol evidence for any type of ambiguity – latent or patent – to determine what the T’s intent was.

    5. Dependent Relative Revocation (DRR): allows the court to ignore a revocation of Will #1 on the grounds that T revoked Will #1 b/c T mistakenly believed Will #2 effectuated his intent.

      1. Rule: (1) if T revokes her will, or a portion thereof, (2) in the mistaken belief that a substantially identical will or codicil effectuates her intent, (3) then, by operation or law, (4) the revocation of the first will be deemed condition, dependent, and relative to the second effectuating the T’s intent. (5) If the second does not effectuate T’s intent, the first (by pure legal fiction) was never revoked.

      2. Applies where: will #1 revoked by subsequent instrument or by physical act (atty who drafted will can testify as to the terms of the will).

    6. Mistake involving living children (pretermission): accidental omission of a child from a will

      1. Rule: a child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.

        1. A pretermitted child takes an intestate share of the estate (which includes assets in testator’s inter-vivos trust).

        2. If after the child is born there is subsequent republication of the will by codicil, the omitted child may NOT take b/c (i) the codicil republished the will, and in the alternative (ii) the codicil itself is a testamentary instrument, thus the birth took place before the codicil was executed.

      2. A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted. Child takes nothing.

        1. Exception: a child born or adopted before all testamentary instruments are executed and not provided for in any instrument is treated as if pretermitted if the only reason the child was not provided for is b/c T erroneously believed the child to be dead or non-existent.

  2. Components of the will

    1. Integration: refers to which papers make up the will – two elements required

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

      2. Presence: The paper must have been actually/physically present at time of execution.

    2. Incorporation by reference: allows a non-integrated writing to become part of the will – if:

      1. The document or writing must have been in existence when the will was executed

      2. The document must be clearly identified in the will

      3. T must have intended to incorporate the doc into the will (usually implied, if 1-3 met)

    3. Facts of independent significance: who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from T’s will. Allows the court to fill in the blanks in T’s will with parol evidence that is trustworthy.

    4. Pour-over wills: where part or all of T’s estate is devised to the trustee of an inter-vivos trust that trust instrument may be admitted into probate – and the pour over provisions effectuated – via (1) incorporation by reference or (2) independent significance or (3) Uniform Testamentary Additions to Trusts Act – as long as you have a valid trust, which was executed before or concurrently w/ the execution of the T’s will, the pour-over provision is valid by statute.

  3. Requirements for Execution of Attested Wills

    1. Elements:

      1. The will must be in writing

      2. The will must be signed by the T, a person appointed by T if T is incapacitated, or a conservator appointed by the court.

      3. Signing must be done in the presence of 2 witnesses (or by acknowledging signature)

      4. The witness must sign the will & understand that the instrument they sign is T’s will.

        1. Witnesses do not have to sign in the presence of T

        2. T does not have to declare to witnesses “this is my will”

        3. There is no order of signing

        4. Signing anywhere on the will is okay

        5. Split in Cal. re whether witness may sign after T dies. Recently the Cal. Supreme Court held that the W must sign during T’s lifetime.

    2. Interested Witnesses: those who are beneficiaries under the will.

      1. Not automatically invalid. But, unless there are two other disinterested W’s, a presumption arises that the W-beneficiary secured the gift by wrong-doing.

        1. If W-beneficiary rebuts the presumption of wrongdoing – she still takes the gift

        2. If W-beneficiary fails to rebut, she takes the amount as does not exceed what would be given in intestacy.

    3. Conditional Will: one whose validity is made conditional by its own terms

      1. The will is to be probated only if the condition is satisfied.

  4. Requirement for Execution of Holographic Wills

    1. Elements:

      1. Must be signed by the testator (anywhere on the will)

      2. The material provisions (gifts made and beneficiaries’ names) must be in the T’s own handwriting.

    2. Extrinsic evidence IS admissible to determine T’s testamentary intent.

    3. A series of letters can constitute a will under integration.

    4. A date is not required but lack of a date can create problems:

      1. If an undated holograph will is inconsistent w/ the provisions of another will, the undated holograph is invalid to the extent of inconsistency – unless the undated holograph’s date is established to be after the date of execution of the other will.

        1. If two undated holographs – and unable to establish dates – neither is probated to the extent of the inconsistency.

      2. If a holograph is undated, and it is established that the T lacked capacity at any time during which the will might have been executed, the holograph is invalid – unless it is established that it was executed at a time when the T had capacity.

  5. Choice of Law – a will can be admitted to probate in Cal. if any of the following 3 rules is satisfied

    1. The will complies w/ California’s formalities of execution

    2. The will complies w/ the formalities of the place where the will was executed.

    3. The will complies w/ the formalities of the place where T was domiciled at the time of execution.

  6. Codicils

    1. Defined: a testamentary instrument executed in compliance w/ the California probate code which modifies, amends or revokes a will.

    2. A codicil republishes a will, so that the will speaks from the date the codicil is executed.

    3. Revocation of codicils:

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

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

  7. Revocation

    1. By Physical Act:

      1. Elements:

        1. Will must be burned, torn, cancelled, destroyed or obliterated

        2. T must have the simultaneous intent to revoke (act and intent must coincide)

        3. The act must be done by the T, or by someone in the T’s presence and at his direction.

      2. Cancellations and interlineations generally cancels the changed provisions if the material provisions are not in T’s own handwriting. But a cancellation or interlining may be saved by DRR (as long as the new gift is greater than the cancelled gift – can’t use DRR to save a interlineations that reduces a gift or increases a co-beneficiaries gift).

      3. Duplicate Wills: If T, or someone in T’s presence and at his direction, revokes by physical act on of the duplicate originals, then the other duplicate original is also revoked as a matter or law.

      4. Mutilated Wills: If a will is found in a mutilated condition at T’s death, and when last seen it was in T’s possession → rebuttable presumption that T intended to revoke it.

    2. By Subsequent Written Instrument:

      1. Can be express (statement in will #2) or implied (will #2 totally disposes of T’s estate)

      2. Revival: not automatic, but may occur if T manifests an intent to revive Will #1 (oral statements where Will #2 is revoked by physical act OR terms of the codicil indicate that T wanted Will #1 revived where Will #2 is revoked by subsequent instrument).

    3. By Operation of Law

      1. Omitted Child: A will executed prior to the birth or adoption of a child which omits that child is revoked as to that child.

        1. Unless: (1) D’s failure to provide for the child was intentional, and that intention appears from the testamentary instrument; (2) D evidenced a plan that child’s other parent would take financial care of all children that they have together; (3) D provided for the child outside the testamentary instrument w/ intent that the transfer is in lieu of any testamentary provision.

        2. Omitted child receives an instate share of assets decedent owned at death plus any assets held in an intervivos trust. Other gifts are abated or reduced.

      2. Omitted spouse: a will executed prior to marriage, and which omits the surviving spouse is revoked as to that spouse:

        1. Unless: (1) failure to provide was intentional, and intent appears on the instrument; (2) D provided for the spouse by some other transfer, (3) omitted spouse signed a valid waiver of her right to share in T’s estate.

        2. Omitted spouse received a statutory share of assets decedent owned at death plus any assets held in any intervivos trust. Statutory share includes:

          1. ½ of the CP and ½ of the quasi-CP (thus the spouse ends up with 100% of the CP and quasi-CP)

          2. A share of the SP equal to that what she would have received if the decedent had died w/out a will, but never more than ½ the SP estate.

      3. Omitted domestic partner: same as omitted spouse

      4. Final dissolution of marriage or domestic partnership: Disposition of property to a former spouse in a will executed before divorce/annulment is revoked by dissolution unless the will provides otherwise.

    4. By Change in Property Holdings (Ademption)

      1. Where T has devised specifically described property and that item is not owned by T at death, the specific gift is deemed revoked and beneficiary takes nothing unless there is evidence that T intended the beneficiary to take a substitute gift. There is a constructional preference for viewing such gifts as general gifts (which aren’t adeemed).

      2. Stock problems:

        1. If stock was never owned, then executor buys it

        2. If stock was owned and language is specific (“my 100 shares of stick”) then gift is specific → ademption arises.

        3. If stock splits after execution of will then gift is specific and beneficiary talks all

        4. Stock dividends are treated the same as stock shares.

      3. Court may use acts of independent significance to fill in blanks in T’s will.

      4. Even were T no longer owns property, devisee has right to receive unpaid insurance benefit in property, condemnation award for taking of property, net sale price where property is sold by conservator, foreclosure proceeds.

    5. By satisfaction: an inter-vivos gift to the beneficiary is deducted from the devise, where the T expressed in a written document that she intended the gift to be in satisfaction of the devise.

    6. By advancement: an inter-vivos gift to an heir apparent is deducted from the donee’s intestate share if the donee’s intent is expressed in a written document executed by donor and donee.

  8. Contracts re wills:T can contract to make, not to make, to revoke or not revoke a will – testamentary formalities are not required – contract law controls not probate law.

    1. K must be established by:

      1. Provisions in will stating material terms of K;

      2. An express reference in the will to the K & extrinsic evidence

      3. A writing signed by T evidencing the K

      4. Clear and convincing evidence of an agreement or promise between the D and another person for claimant’s benefit.

    2. Requirements & Rules

      1. K must be in writing

      2. K is always revocable

      3. Oral K enforceable if part performance.

    3. Joint & Mutual Wills

      1. Joint Wills: wills of 2 or more persons executed on the same piece of paper and intended to be the will of each.

      2. Mutual Wills: separate wills by 2 or more persons containing provisions for reciprocal benefits.

      3. CA holds, that the execution of a joint or mutual will does not create a presumption of a K not to revoke the will.

  9. Intestate Succession

    1. Surviving Spouse/Domestic Partner

      1. Community Property: Surviving spouse inherits the decedent’s ½ of the CP and ½ of the quasi-CP (so surviving spouse ends up w/ 100% of CP & quasi-CP).

      2. Separate Property:

        1. If D leaves not issue, parents, siblings, etc., → all to surviving spouse

        2. If D is survived by one child, or issue of a predeceased child → ½ to surviving souse and ½ to child or child’s issue.

        3. If D is survived by 2 or more children, or issue of predeceased children → ⅓ to surviving spouse and ⅔ to the children or their issue.

        4. If D is survived by parents or parent’s issue (siblings) → ½ to surviving spouse, ½ to parent or their issue

    2. If spouse does not survive (or the remaining share not passing to spouse) passes as follows:

      1. To issue;

      2. To parents

      3. To issue of parents (decedent’s siblings);

      4. To grandparents or issue of grandparents (decedent’s aunts and uncles);

      5. To issue of predeceased spouse (step-children)

      6. To next of kin

      7. To parents of predeceased spouse (in-laws) or issue of parents of predeceased spouse (siblings-in-law)

      8. Escheats to the state.

    3. General Principles

      1. Issue of the same degree take “per capita,” or equally and in their own right

      2. Issue or more remote degrees take “per capita with representation.”

      3. § 240 of the Probate Code distribution: at the 1st level, give shares to all living persons; at the 2nd level, gives shares to all living persons and deceased members of that generation who leave issue.

      4. Per Stirpes distribution: make the distribution at the first generation or first level, even if everyone is dead, so long as they life issue. The issue then steps into the shoes of their predeceased ancestor.

    4. Children:

      1. Adopted children always treated as natural child of the adopting parent.

      2. Stepchildren or foster children are treated as adopted children if it is established that the parent would have adopted but for a legal barrier.

      3. Non-marital children may inherit from mother when there is a parent-child relationship be mother giving birth, and from father only if father acknowledges child, marriage to mother, or by court decree of paternity.

  1. Distribution of the Estate

    1. Lapse:

      1. Rule of lapse: if the beneficiary does not survive T, beneficiaries’ gift lapses, or fails, unless T expresses a contrary intent in the will. Passes by residual; if none by intestacy.

        1. If the devise is a class gifts, only surviving class members take because the will speaks at the time of the T’s death. Deceased class members share will be deemed to have lapsed.

      2. California’s Anti-Lapse Statute: A deceased legatee who is a blood relative of the T or the T’s spouse takes by representation. Issue of a predeceased devisee may step into the shoes of the devisee, unless will provides otherwise.

    2. Simultaneous Death: When two people die at the same time, and time of death cannot be established, property of each decedent is treated as if he predeceased the other.

      1. Beneficiary who does not survive T by 120 hours is treated as if he predeceased T.

    3. After-acquired property: will passes all property the T owed at death, including after-acquired property. So residuary gets all after acquired property.

    4. Increase during T’s lifetime: Stock dividends or splits paid during T’s lifetime go to the beneficiary if the stock is owned by T at T’s death.

    5. Increase after T’s death and during probate:

      1. Specific devisees – all increases go to the beneficiary

      2. General devisees – do not receive any increase. Except beneficiary may receive interest paid on beneficiaries’ gift during the interim between T’s death and distribution of the estate.

    6. Abatement: the process by which certain gifts are decreased.

      1. Order of abatement if omitted spouse/child/domestic partner:

        1. First abate property not passing by D’s will or revocable inter-vivos trust

        2. Then abate from all beneficiaries of T’s will and revocable inter-vivos trust pro rata to the value of the gift received.

      2. Order to pay off general debts of the decedent:

        1. Intestate property

        2. Residuary gifts

        3. General gifts to non-relatives

        4. General gifts to relatives

        5. Specific gifts to non-relatives

        6. Specific gifts to relatives

    7. Exoneration: not automatic in California – property given by will passes subject to all encumbrances unless T provides otherwise in will

  2. Will Substitutes

    1. Gifts causa mortis: gifts of personal property perfected by delivery, but motivated by fear of impending death.

      1. Revocable: subject to claims of creditors / widows

      2. Effective as non-probate transfer if unrevoked at death;

      3. Automatically terminates if T lives.

    2. Totten Trusts – see Trusts outline.

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