CAB Wills

• 18 yrs old
• able to understand extent of property
• know natural objects of bounty (i.e. who are the beneficiaries)
• Know of nature of acts (executing a will)
• - w/out capacity, entire will is invalid

• If at the time of execution the testator:
• held a false belief
• that was the product of a sick mind
• there is NO evidence to support the belief
• delusion affected the testator's will
• Effect: only that part of will affected is invalidated - goes into residuary

• Someone forges testator's signature to a will; or
• Testator is given a doc to sign that is purportedly not testamentary but it is

• Wrongdoer's representations affects the content of T's will
• Consequences: affected part of the will is invalid

• wrongdoer's representation
• Consequences:
• - Crt will NOT probate will
• - constructive trust: beneficiary of wrongdoer's representation will pass to crt-determined beneficiary

• Susceptibility - T has a weakness
• Opportunity - wrongdoer had access to T
• Active Participation - wrongful act creates the gift
• Unnatural Result - Wrongdoer receives an unusual devise
• Consequences:
• - the tainted part of the will is invalidated
• - First to residual, intestate, or constructive trust

• Confidential relationship exists
• Active participation - wrongful act creates the gift
• An unnatural result - wrongdoer receives an unusual gift
• Consequences:- the tainted part of the will is invalidated- First to residual, intestate, or constructive trust

• Presumption that provision of will is invalid if 
• Person who drafted the instrument
• Care custodian
• Spouse/domestic partner/relative/employee of person described above
• Does not apply to:
• drafted by spouse/domestic partner/relatives,
• reviewed by independent attorney, or
• transfer that does not exceed 5K if estate exceeds 10K
• Consequence: transferee is deemed to predecease testator

• T's will names the wrong beneficiary/gift due to accidental omission or addition
• Unambiguous will on its face may be reformed if clear and convincing evidence establishes:
• - contents of mistake in T's expression of intent at the time was drafted
• - T's actual specific intent

• Testator signs the wrong document
• 2 situations:
• - T mistakenly signs will believing it is non-testamentary doc (will is not probated)
• - Reciprocal wills w/ wrong signature (crt will reform will)

• Where no one or nothing fits the description, or 2 or more persons or things fit the description
• Latent ambiguity: no problem on the face of the will (introduce parole evidence to establish ambiguity and intent)
• Patent ambiguity: ambiguity is apparent on the face of the will (see CA statute)
• Modern CA Statute: Introduce parole evidence for any type of ambiguity

• If T revokes will, or portion thereof, in the mistaken belief that substantially identical will or codicil effectuates T's intent, then the revocation of first will is deemed conditional, dependent, and relative to the second will effectuating T's intent
• only use if subsequent will is invalid or fails to effectuate T's intent

• Pretermission - accidental omission
• Pretermitted children - born or adopted after testimentary instruments are executed - takes intestate share of the estate
• If born or adopted before testamentary instrument is executed the child is NOT pretermitted
• - unless: T thought pretermitted child was dead/did not exist

• Which papers make up the will
• Intent: T must have intended for the papers in question to be a part of the will
• Presence:the paper must have been actually or physically present at time of execution
• Proving Integration:
• - physical connection among papers
• - logical connection between pages

• Non-integrated writing is given testamentary effect and becomes part of the will
• A document or writing
• in existence when the will was executed
• clearly identified in the will
• T intended to incorporate the document into the will
• Note: if 1-3 are established, intent will be implied

• Beneficiary/gift may be given meaning by facts of significance independent from T's will ('my church')
• Fact must be verifiable independent from the will
• Allows use of trustworthy parole evidence to fill-in the blanks

• A writing, whether or not it can be incorporated be reference or is a fact of independent significance, may be admitted into probate and given testamentary effect
• Elements:
• 1: Writing must be referred to in the will, dated, and signed/handwritten/intent establishable through extrinsic evidence
• 2: Must describe the items and beneficiaries with reasonable certainty
• 3: Must be executed before or after the will
• 4: Directs the disposition of personal tangible property not used in T's business w/ value not more than $5K @ or $25K total
• Gifts to predeceased pass as directed, otherwise the gift lapses

• Via incorporation by reference
• A trust instrument
• in existence when the will was executed
• clearly identified in the will
• T intended to incorporate trust instrument into the will
• Via Independent Significance
• the independent trust itself is an independent fact of significance
• Uniform Testamentary Additions to Trusts Act
• Statute automatically validates POT if the trust was in existence before execution of will

• In writing
• Signed by one of the following:
• - T
• - 3rdP if in T's presence
• - Conservator
• 2 witnesses at same time to the above signature (or T acknowledges his signature to 2 people)
• Witnesses must sign the will during T's lifetime
• Witnesses know they are signing T's will

• Clear and convincing standard showing intent of T to probate writing
• Used if:
• T's signature is not witnessed,
• witnesses do not sign, or
• witnesses do not know they are witnessing a will

• Analyze problem under traditional formalities
• If problem with witnesses - Harmless error?

• If there is no issue of fraud or mistake, the will should be deemed valid under California's 'substantial compliance doctrine' as the will substantially complies with the Probate Code.
• Note: always follow with Harmless Error if witness-issue is involved

• Sight presence: the witnesses see T sign
• Conscious presence: T signs/acknowledges within the witness's hearing and the witness' knows what is being done
• Failure to meet the presence standard - look to admit under Harmless Error rule (clear and convincing standard)

• Will is not invalidated
• Rebuttable presumption of wrongdoing
• - only takes (max.) intestacy amount
• Inapplicable if witness-beneficiary only takes in a fiduciary capacity (trustee)

• A will whose validity is made conditional by its own terms
• Only to be probated if condition is satisfied

• Must be signed by T (anywhere on will)
• Material provisions must be in T's own handwriting
•  - gifts made and beneficiaries named

• T signs a writing simply listing assets and names - use extrinsic evidence to determine intent
• T writes a series of letters - may constitute a will under integration
• Testamentary intent is part of a commercially printed form - allowable under CA Probate Code

• A date is NOT required
• Can create issues with inconsistent wills or capacity
• - Undated holographic will's inconsistent statements are excluded compared to a dated will
• - holographic will is invalidated if testator lacked testamentary capacity when the will might have been executed

• If the will complies with CA's formalities of execution
• If it complies with formalities of place where executed
• If the will complies with place where T is domiciled at time of execution

• A testamentary instrument
• executed in compliance with CA Prob Code
• Which modifies, amends, or revokes a will

• Pour-over will created after will
• - no incorporation by reference
• A codicil republishes will
• - will now 'speaks' from new, later date
• - pour-over can now be incorporated by reference b/c it existed prior to republication

• Will gives everything to charity
• Child/spouse enter picture after will is executed
• Codicil republishes the will - precluding attacks of pretermission:
• - codicil republished will after person was born/married; and
• - codicil is a testamentary document executed after person was born/married

• Rebuttable presumption that revocation of codicil does not revoke will
• Rebuttable presumption that revocation of will invalidates codicil amending it

• Must be burned, torn, cancelled (crossing-out), destroyed, or obliterated
• T must have the simultaneous intent to revoke
• The act must be done either by T, or by someone in T's presence and at his direction

• NOT a holographic codicil unless includes material portions
• - does not need a new signature
• Using Dependent Relative Revocation on failed interlineation codicil:
• - if new gift is greater: handwritten gift was dependent on revocation of crossed-out gift - beneficiary takes crossed-out gift
• - if new gift is less: DRR is not used. Entire gift is cancelled.

• Prohibited - you cannot increase a co-beneficiary's gift by cancellation
• ex: farm to X and Y. Y is crossed out. X still only gets X. Y's share goes to residue/intestate

If T, or someone in T's presence and at T's direction, revokes by physical act one of he duplicate originals, then the other is also revoked

If a will is found mutilated at T's death, and when last seen was in T's will was last seen in his possession, the rebuttable presumption is that the will is revoked.

• Explicit
• Implied: Subsequent will revokes prior wills if it entirely disposes of T's estate

• Prior will is revived upon destruction of subsequent will if
• - T demonstrates intent that prior will be revived
• - In CA, revival is not automatic
• By codicil: terms of codicil must indicate that T wanted previous will to be revived

• A child born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument
• Consequence: child receives intestate share plus any inter vivos trust amounts
• Exceptions:
• - intentional omission w/ intent appearing in testamentary instrument
• - at time of execution, substantially all assets are transferred to other parent of omitted child via inter vivos trust
• - T provided for child outside testamentary instrument in lieu of transfer via testamentary instrument

• Surviving spouse who married decedent after execution of all testamentary instruments and is not provided for in any testamentary instrument
• (includes inter vivos trust)

• 1/2 community property owned by decedent or in any revocable trust
• 1/2 quasi-community property owned by decedent at death or in any revocable trust
• A share of separate property equal to intestate share
• - max. 1/2 separate property of the estate

• Exceptions:
• intentional omission w/ intent appearing in testamentary instrument
• T provided for spouse outside testamentary instrument in lieu of transfer via testamentary instrument
• Omitted spouse signs a waiver

• Waiver: a voluntary relinquishment of a known right, whether signed before or during marriage
• Any and all probate rights can be waived
• Elements:
• - in writing, signed before or during marriage
• - full disclosure of T's assets
• - independent counsel by waiving spouse
• Enforceable unless unconscionable
• Exception:
• - full disclosure not necessary if spouse should have known 
• - independent counsel not necessary if fair

• Revoked upon annulment or final dissolution of marriage/term. of dom. partnership
• Legal separation does not affect the testamentary gift
• Reinstated upon remarriage if unchanged
• Rules do not apply if expressly stated otherwise

• Specific devise
• General Devise
• Demonstrative Devise
• Residuary Devise

• gift of a particular, unique item
• real property is always specific
• ex: "my" 10 shares of company X
• T must have the intent that Beneficiary take that particular thing

Payable out of general assets - payable as the gift named or cash equivalent

• Gift from a specified, particular fund
• If funds are insufficient, the amount may be made up from general assets

All other property not expressly disposed of in the will

• Intent is important in determining whether T intended the gift to fail
• There is no ademption by extinction in the following situations:
• Securities changing form (reissued stock, split stock, etc.)
• Conservator sells off assets - beneficiary takes the net benefit (b/c T did not sell the asset)
• Eminent Domain Award - paid after death
• Insurance Proceeds - paid after death
• Installment Sale Proceeds - paid after death
• - For proceeds paid after death, intent can be inferred from tracing proceeds to a separate account

• T give Beneficiary an inter vivos down payment on device
• 4 ways it comes up:
• - will provides for deduction of inter vivos gift
• - T declares in contemporaneous writing a gift is satisfaction
• - beneficiary acknowleges in writing
• - inter vivos gift is the same as a specific gift to the beneficiary

Rule: Where the issue of predeceased beneficiary takes the devise under the anti-lapse statute, the issue of the predeceased is treated as if he had received the satisfaction (unless T states otherwise in will or other contemporaneous writing)

• If expressed in contemporaneous writing of the testator or beneficiary, that writing is conclusive
• Otherwise, FMV measured at time of taking

• An inter vivos down payment made by an intestate to an heir apparent
• Establishing advancement:
• - declaration by T in contemporaneous writing
• - Declaration by beneficiary in writing at any time
• Valued:
• - contemporaneous writing by T or devisee
• - otherwise, FMV at time of taking

• Will/instrument states the material provisions of the contract (in consideration of $ I hereby)
• Express reference in will/instrument to K (terms of contract can be determined by parole evidence)
• Writing signed by decedent evidencing K
• Clear and convincing evidence of agreement that is enforceable in equity

• Generally - when the decedent dies
• Exception: when T is engaging in conduct which would be a fraud on the promisee
• - injunction to prevent dissipation of funds

• Joint: Will of 2 or more people on 1 document
• Mutual: Separate wills of 2 or more people which are reciprocal
• Joint & Mutual Wills: Reciprocal provisions on one document
• - does not create presumption of contract
• - may be evidence of a contract

• Damages
• Specific Performance
• Constructive Trust

• Community property - T can only dispose of 1/2
• Quasi-community property- T can only dispose of 1/2
• Widow's election- S may elect b/twn accepting gift in T's will rather than take statutory right
• Illusory Promises-
• -generally: T's inter vivos transfer of quasi-comm property to 3rdP w/out consideration is allowed
• -exception: if illusory (T retains some interest/control) then surviving spouse may elect to have 1/2 property to be restored to estate

• Proof:
• - conviction , or
• - clear and convincing evidence
• Consequences: killer/issue does not take
• - Killer is deemed to predecease T
• - Anti-lapse statute does not apply

• Community property: inheret's 1/2 of deceased property (now owns all)
• Quasi-community property: inheret's 1/2 of deceased quasi-property (now owns all)
• Separate Property:
• - If D has no issue/parents/siblings/nephews - Spouse takes 100%
• - If D survived by 1 child/issue of predeceased child, child/issue takes 1/2 and spouse 1/2
• - If D survived by more than 1 child/issue, then 1/3 to spouse and 2/3 to children/issue
• - If D survived by no issue, but parents/issue, then 1/2 to parents/issue and 1/2 to spuse

• Issue
• Parents
• Issue of parents
• G-parents
• Issue of G-parents

• Issue of the same degree take "per capita": equally & in his own right
• Make equitable distribution at first level of distribution with someone living

The distribution at the first level, even if everyone at that level is deceased

• relationship began during child's minority
• Relationship continued throughout life
• established by clear and convincing evidence that D would have adopted but for legal barrier
• -ex. biological parent does not give consent to adopt

• child born during domestic partnership
• "parents" formed/attempted to form a lawful domestic partnership after child's birth and -
• - non-birthing partner is named on birth certificate, or
• - pays child support

• If B does not survive T, unless a contrary intent is expressed the gift falls into residue, if there is one
• -if already part of the residue it goes to co-residuary devisees

• Applies if predeceased B is "kindred" of T/T's spouse
• Issue of predeceased B step into B's shoes and take the devise
• Kindred: of blood relationship
• Applies to Wills & Revocable Trusts & Class Gifts

• T and D die under simultaneous event
• If cannot determine by C & C evidence which survived the other - D is deemed to have predeceased T
• Gift lapses or anti-lapse is applied

JTs w/ right of survivorship, w/out C&C evidence of who survived the other, sever the JT between the estates

• Community/Quasi will be severed
• 1/2 of each type will be distributed to each estate

• See if there is an alternate beneficiary named
• If not, policy pays to insured's estate
• - goes first to residuary beneficiary
• - then to insured's heirs

• For an heir to take, the heir must survive the intestate by 120 hours
• Does not apply if result would be escheat

The process by which certain gifts are decreased when necessary to pay for statutory share not provided for

• property not passing by T's will or revocable inter vivos trust
• abate from all beneficiaries of T's will/revocable trust pro rata, in proportion to value received
• Applied to specific, general, and residuary gifts
• - Except: if specific gift is made with obvious intention of T

• intestate property
• residuary gifts
• general gifts to non-relatives
• general gifts to relatives
• specific gifts to non-relatives
• specific gifts to relatives

• Devisee takes specific gift subject to the encumbrance
• unless T's will states the specific gift is to be exonerated
• NO Automatic exoneration: general instruction to "pay all my just debts" is not sufficient

• Gift made by donor believing death is imminent Only personal property (no real property)
• Delivery required (actual, symbolic, constructive)
• If donor survives, the gift is revoked by operation of law

• Common: What is given is key - must provide access to the item being constructively given
• Modern: Found whenever donor has done everything possible to effectuate delivery (absent fraud or mistake)