WILLS

• time of execution, testator must:
• (1)18 years of age;
• (2) 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)

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.

• 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
• 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.

• (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.

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.

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:
• Give the property to the residuary devisees, if any; or
• If there is no residue, to the heirs at law by intestate succession;
• ORMake the heirs or devisees a constructive trustee

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.

• Established in 3 ways (discuss all three)
• 1. Prima Facie Case
• 2. Presumptions
• 3. Statutory Undue Influence

• 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 (iii) via constructive trust.

(1) A confidential relationship exits between the T and the wrongdoer, (2) the wrongful act gets the gift, (3) 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 (iii) via constructive trust.

• California generally invalidates a donative transfer from T to:
• a) A person who drafted the instrument
• b) A person who is related to, married to, or cohabitates w/, or is an employee of the drafter
• c) A person who is in a fiduciary relationship with the T and who transcribes the testamentary instrument.

These rules do not apply if: The T is related to, married to or co-habitats w/ the drafter orIf the instrument is reviewed by an independent atty who counsels T

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.

• the wrong beneficiary is named or the wrong gift is made
• a) If words are accidentally left out – no relief is given, courts do not re-write wills (but DRR may be an option)
• b) If words are accidentally added – remedy may be given – ct may strike out extra words

T signs the wrong doc

• a) If T sings the will believing it is a non0testemnetary instrument – the will is not probated b/c T did not intend the document to be a will.
• b) 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.

a particular gift is made/not made on the basis of T’s erroneous belief

No relief is given.

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.

No one or nothing fits the description OR two or more persons or things fit the description.

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

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.

• 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.
• 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).

Accidental omission of a child from a will

• Rule: a child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.
• A pretermitted child takes an intestate share of the estate (which includes assets in testator’s inter-vivos trust).
• 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.

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

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.

refers to which papers make up the will – two elements required

• Intent: T must have intended for the papers in question to be part of the will;
• Presence: The paper must have been actually/physically present at time of execution

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)

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.

• 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.

1) writing 2) signed by T 3) in the presence of 2 witnesses 4) who also sign & understand 

Notes: witness does not have to sign in T's presence, no order of signing, signing anywhere ok, CAL must sign during T's lifetime

1) signed by T, 2) material provisions in T's own handwriting. 

• a)Extrinsic evidence is admissible to determine T's intent
• b)Date is not required but lack of date can be invalid provisions if inconsistent w/provisions of another will.

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

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.

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.

• 1) Subsequent will or codicil (explicit or implicit)
• 2) physical act (need simultaneous intent to revoke)
• 3) Operation of law (ommitted child/spouse or divorce/annulment

• Will must be burned, torn, cancelled, destroyed or obliterated
• T must have the simultaneous intent to revoke (act and intent must coincide)
• The act must be done by the T, or by someone in the T’s presence and at his direction

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

• a will executed prior to birht or adoption of a child which omits that child is revoked as to that child and she will receive her instate share of assets. 
• Unless: 1) omission was intentional as shown in will 2) D provided for child by other transfer 3) D evidence plan that childs other parent would take financial care of all the couples children.

• a will executed prior to marriage, which omits the surving spouse is revoked as to that spouse, and she/he will receive her instate share of assets (D's share of CP and quasi-CP plus up to 1/2 of D's SP). 
• Unless: 1) omussion was intentional as shown in will 2)D provided for spouse by other transfer, or 3) spouse made valid agreement waiving right to share in D's estate.

• Cancels a revocation where T revoked based on mistaken belief that a subsequent will or codicil effectuated his intent.
• If 2nd will does not effectuate T's intent, the first will was not revoked.

Where T has devised specially described property and that property is not owned by T at death, the specific gift is deems revoked and beneficiary take nothing unless there is evidence that T intended a general gift

An inter-vivos gift to B is deducted from the devise, where the T express in written document that she intended the gift to be in satisfaction of the devise.

an inter-vivo gift to an heir apparent is deducted from the donnee's intestate share if the donors intent is expressed in a written document executed by donor and donnee.

If the bene does not survive T, B gift lapses, or fails, unless T expresses a contrary intent in the will. Passes by residual, if none by testacy. 

*if class gift, only surviving class members take b/c the will speaks at the time of the T's death. Deceased class members share will be deemed to have lapse.

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 provides otherwise.

• 1) all CP
• 2) all quasi-CP
• 3) all 1/2 or 1/3 of SP

• 1) issue
• 2) parents
• 3) issue of parents (siblings)
• 4) grandparents, etc
• 5) issue of predeceased spouse (step-children)
• Next of kin

• At the 1st level, give shares to all living persons
• at the 2nd level, gives shares to all living person and deceased members of that generation who leave issue.

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

• Adopted children always treated as natural child of the adopting parent.
• Stepchildren or foster children are treated as adopted children if it is established that the parent would have adopted but for a legal barrier.
• 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.