Wills checklist

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Wills checklist

  1. 1. WILLS 1 I. EXECUTION OF WILLS A. (1) Attested Wills: A will is properly attested if it is 1) in writing (oral wills not recognized in CA), 2) signed by the T (or by someone at T‟s direction), 3) T must sign (or acknowledge his signature or will) in the joint presence of at least 2 witnesses and 3) witnesses understand that the instrument being witnessed is T‟s will. i. Under the substantial compliance doctrine, substantial compliance absent fraud will still validate a will. ii. Interested witnesses: is a beneficiary under the will. 1. At CL, a witness who was beneficially interested in the will was deemed incompetent and the will held invalid. 2. Under CA law, if 1 of 2 W‟s is beneficially interested in the will, the will is valid, but the fact that the will makes a devise to a subscribing W creates a rebuttable presumption that the W procured the devise by duress, menace, fraud or undue influence, unless he only takes in a fiduciary capacity or there are 2 disinterested W‟s to rebut. The interested B must rebut the presumption to take his share. If a devise fails b/c the W fails to rebut the presumption, the W takes what she would have under intestate succession. B. (2) Holographic Wills: A holographic will is valid if the testator signed the will and the material provisions are in testator‟s own handwriting. (extraneous writing with testamentary intent surrounding it); i. Dates not required for holographic will, but absence of date can create problem where: 1. Undated holograph is inconsistent with provisions of another will; OR a. If so, undated holograph invalid to extent of inconsistency unless shown to have been executed after date of other will 2. Testator lacked testamentary capacity at any time during which holograph might have been executed a. If so, undated holograph is invalid unless shown to have been executed when T had testamentary capacity 3. In CA, holographic wills are permitted and can revoke a codicil so long as the formalities req‟d of ra holographic are followed. C. (3) Testamentary Capacity: the entire will is invalid if the testator must be 18 years old, able to understand the extent of her property, know the natural objects of her bounty, and must know the nature of her act. If T lacks capacity, entire will invalid and property passes to residuary devisees; or heirs at law by intestate succession or probate and give property to wrongdoer under constructive trust, unless invalid will was intended to revoke/replace prior valid will i. Insane delusion: the portion of the will affected by the insane delusion is invalid if the testator had a false belief, that was the product of a sick mind, even if there is no scintilla to support the belief, and the delusion must have affected the testator‟s will. ii. Fraud: the will or part of a will is invalid if there was a representation of material fact, known to be false, for the purpose of inducing action or inaction 1. Fraud in Execution: forging Ts signature or having T sign a document that is purportedly nontestamentary 2. Fraud in Inducement: wrongdoer‟s representations affect contents of the will; invalidates only part affected iii. Undue influence (3 ways) : portion of a will affected will be invalid if there was a prima facie case or by presumption. 1. Prima facie undue influence: the portion of a will that is affected will be invalid if the testator was susceptible to undue influence, the wrongdoer had access to the testator and actively participated in the undue influence to get the gift, which ends in an unnatural result (takes devise he ordinarily would not be expected to take). 2. Presumption of undue influence: the portion of a will that is affected will be invalid if there was a confidential relationship between testator and wrongdoer who actively participated, which ends in an unnatural result. 3. Statutory undue influence (CA): In CA, the portion of a will that is affected will be invalid if there was a donative transfer to the drafter, relative of drafter, employee or fiduciary of the drafter, but not if the testator is related to the drafter or the instrument was reviewed by an independent attorney who counsels the testator. D. (4) Choice of law: A will is valid in California if valid in 1) place of execution; 2) domicile at death; or 3) domicile at execution E. (5) Conditional will: one whose validity is conditional upon its own terms. II. REVOCATION OF WILLS A. (1) Revocation by physical act: A will is revoked by burning, tearing, canceling/interlineations, or obliteration (erased), w/the simultaneous intent to revoke, and is done by either the T or one in T‟s presence at his direction; cannot increase a co-beneficiary‟s gift by cancellation. i. Cancellation and interlineations: If on top of formal will, they don‟t create holographic codicil unless all material provisions (gifts + names of beneficiaries) are in Ts own handwriting; If on top of holographic will, does create new disposition 1. If interlineations creates gift greater than cancelled provision = DRR may operate to preserve original gift 2. If interlineations creates gift less than cancelled provision = DRR cannot be used ii. Duplicate Wills: If testator or one in his presence at his direction revokes one of the duplicate originals, the other duplicate original is revoked. iii. Mutilated wills: there is a rebuttable presumption testator mutilated will with the intent to revoke the will if a mutilated will was last seen in testator‟s possession. B. (2) Revocation by subsequent written instrument: revocation can be express (subsequent writing expressly revokes prior will); or implied (subsequent will revokes prior will if totally disposes of Ts estate). The revoking instrument must be executed w/the formalities req‟d for execution of the will. i. The act of revocation uperformed upon a codicil does not revoke the will, even if the T so intended. ii. Revival: under CA law, the revocation of a subsequent codicil/instrument does not revive the prior will unless the T intends the prior will to be revived. Extrinsic evidence is admissible to prove T‟s intent to revive. C. (3) Dependent Relative Revocation: a court will allow revocation by DRR if there was a revocation of a prior will based on a mistake of law or fact but for the mistake, the testator would not have revoked the will. i. Note: Whenever you determine a subsequent will is invalid, always consider whether prior will be revived under DRR D. (4) Revocation by operation of law i. Divorce/Termination of Domestic Partnership: a devise is revoked if there is an annulment or final dissolution of marriage. (legal separation does not count; devise is reinstated if T remarries former spouse and will is unchanged but rule doesn‟t apply if will states otherwise. III. COMPONENTS OF WILLS
  2. 2. WILLS 2 A. (1) Integration doctrine permits papers/writings to be part of T‟s will if T intended it to be her will and it was present at the time of execution. i. Intent shown through 1) physical connection among all pages; or 2) logical connection among pages B. (2) Republication by Codicil: A codicil is a testamentary instrument executed subsequent to the execution of a will intended to modify, alter or expand the will. To be valid, a codicil must be executed w/the same formalities required for the execution of a will. i. The will speaks as of the date of the codicil; T must expressly state codicil is „republishing‟ will ii. Codicil can eliminate pretermission problems: 1) codicil republished the will; or 2) codicil itself is testamentary instrument thus birth, marriage or domestic partnership too place before codicil executed iii. Revocation: Rebuttable presumption that T intended to revoke only codicil, not will; but presumption T intended to revoke will and codicil if will revoked Codicil: testamentary instrument executed in compliance with statute of wills, which modifies, amends or revokes a will. C. (3) Incorporation by Reference: A document may be incorporated by reference into the will so that is considered part of the will if 1) writing in existence at execution; 2) will shows intent to incorporate (can be implied by court if other elements satisfied); and 3) writing sufficiently described in will D. (4) Acts of Independent Significance: identity of beneficiary or a gift may be supplied by facts of significance independent of Ts will; allow us to fill in blanks to Ts will with parol evidence effectuated during the T‟s lifetime that primarily for NONtestimentary motives and is trustworthy. (e.g., document can‟t be created solely for purposes of naming B or gift) IV. INTERPRETATION OF WILLS A. (1) Admission of Extrinsic Evidence (Mistake): i. Mistake in content: wrong beneficiary is named or wrong gift is made. 1. By omission, no remedy is given because courts do not re-write wills. 2. By addition, the court may strike out because the courts are just excising a part of the will. ii. Mistake in execution: T signs wrong document thinking it is a non-testamentary instrument, or signing the other will during reciprocal wills. Not probated because no intent by T. iii. Mistake in inducement: particular gift is made or not made on basis of testator‟s erroneous beliefs; no relief given unless mistake and what T would have done but for mistake both appear on fact of the will iv. Mistake in description: where there is an ambiguity (latent = not on face of will; patent = on face of will), parol evidence can be used to establish the ambiguity and to determine the meaning. Modernly parol evidence admissible to ascertain any type of ambiguity v. Mistake involving living children (pretermission): 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; child treated as pretermitted if only reason he was not provided for in will before testamentary instruments executed is because T mistakenly believed child was dead or nonexistent. B. (2) Lapse (Death of Beneficiary Before T): i. Lapse: If beneficiary predeceases T, beneficiary gift fails (falls to residue if any; to co-residuary devisees if already part of residue; or by intestacy) ii. Anti-Lapse statute: Issue of predeceased devisee step into shoes of predeceased devisee so gift doesn‟t lapse 1. Applies only applies if the predeceased devisee is a “kindred” or blood relative of T / “kindred” of spouse or domestic partner ; NOT surviving, deceased or former spouse himself. C. (3) Pour-Over Will: exists where part or all of a testator‟s estate is devised to a trustee of an inter-vivos trust, to be administered pursuant to the terms of the trust. i. Incorporation by Reference: A pour-over will is valid through incorporation by reference if the trust is in writing, in existence at the time will was executed, was clearly identified in the will, and the testator intended to incorporate the trust instrument in the will OR by ii. Independence significance whereby the pour-over provision will be validated by facts of independent significance or by iii. UTATTA: Statute so long as trust is valid and was in existence before or at time will was executed. 1. If trust modified after will executed, incorporation by reference no longer good because trust as modified was not in existence when will was executed; but provision can still be validated as act of independent significance or statute D. (4) Revocation by Ademption i. Classification of 4 Types of Gifts: 1. Specific Devise: gift of a particular item (unique; T intended that beneficiary take precise thing); adeem by extinction only 2. General Devise: payable out of general assets of estate (nothing unique or special); adeem by satisfaction 3. Demonstrative Devise: hybrid of general and specific; gift from particular fund but executor can resort to general property if fund is not enough 4. Residuary Devise: all other property not expressly disposed of in will ii. Ademption by extinction: 1. CL: when a specific gift fails because the testator did not own the property at testator‟s death; 2. CA: Specific gift adeems by extinction only if T does 1) not own property at his death and 2) T intended to adeem the gift at the time he disposed of the specific property. No ademption by extinction of gifts of: securities changing form, conservator sells off assets, eminent domain award, casualty award, installment sale of property paid after T‟s death (if before see if can easily trace – evidencing intent to not fail). For all others, try to classify the gifts as general or try to trace. iii. Ademption by satisfaction: occurs where the will provides for a deduction of the intervivos gift, testator declares gift in a contemporaneous writing of the satisfaction, beneficiary acknowledges in writing of the satisfaction, or the property is the same as the subject of a specific gift. 1. If beneficiary receives satisfaction but predeceases T, beneficiary‟s issue is treated as having received satisfaction unless T‟s will or contemporaneous writing states otherwise 2. If not made in cash, satisfaction valued 1) as expressed in contemporaneous writing of T or beneficiary; or 2) at its FMV, measured at time beneficiary came into possession of the property V. INTESTATE SUCCESSION A. (1) Share of Surviving Spouse: Inherits community and SP share i. Inherits decedent‟s SP as follows:
  3. 3. WILLS 3 1. All of it if decedent leaves no issue, parents, siblings, or issue of deceased siblings 2. Half of it if decedent leaves no issue but leaves parent(s) or other issue 3. Half of it if decedent leaves one child or issue of a predeceased child 4. A third of it if decedent leaves two or more children or issue of predeceased children B. (2) Share of Not Passing to Surviving Spouse: If intestate leaves no surviving spouse: 1) to issue: 2) to parents: 3) issue of parents i. Per Capita: If issue take by intestacy or by a will or trust that does not specify the manner, they take in manner provided in Probate Code section 240: 1. Issue of the same degree take „per capita‟ or equally and in their own right 2. Issue of more degree take „per capita by representation‟ a. Make distribution at first level someone is living, giving shares to 1) all living people at that generation; and 2) deceased members of that generation who leave issue (to be divvied up among the issue) ii. Representation: If a will or trust calls for distribution „per stirpes‟ or „by representation‟ or by „right of representation‟ 1. Diagram problem and make distribution at the very first level, even if everyone is dead, so long as they left issue C. (3) Special Problems i. Advancement: Requires writing that lifetime gift is advance payment of intestate share. Advancement is an inter-vivos down payment on a devise to an heir apparent where the testator declares in a contemporaneous writing, or the beneficiary acknowledges in writing of the advancement. 1. If heir-apparent receives advancement but predeceases intestate, heir apparent‟s issue is not treated as having received an advancement unless advancement states otherwise 2. If not made in cash, advancement is valued 1) as expressed in contemporaneous writing of intestate or heir apparent; or 2) at its FMV at time heir came into possession ii. Adoption: Always treated as natural child of adoptive parents 1. For purposes of succession, adoption severs relationship to child‟s natural parents unless adoption is 1) by spouse of natural parent; or 2) after death of either of the natural parents 2. Stepchildren/Foster children treated as having been adopted if 1) relationship began during child‟s minority; and 2) relationship continued throughout parties‟ lifetimes; and 3) established by clear and convincing evidence that stepparent or foster parent would have adopted but for „legal barrier.‟ 3. Equitable Adoption exists when parties hold themselves out as parent and child iii. Nonmarital Children: In CA, marital status of parents is irrelevant 1. In domestic partnership, parent-child relationship presumed as to nonbirthing partner if 1) child is born during domestic partnership or 2) child is born after domestic partnership but nonbirthing partner is named on birth certificate or pays child support iv. Half-Bloods: relatives of half-blood inherit the same as whole blood v. Posthumous Children: deemed heirs of intestate and beneficiaries of a will; a child conceived during life of intestate or testator but born after his/her death D. (4) Simultaneous Death: i. Intestate: Must prove by clear and convincing evidence heir survived by D by 120 hours ii. Will: Must prove by clear and convincing evidence beneficiary survived T iii. Joint Tenancy: Must prove by clear and convincing evidence beneficiary survived T or sever JT into tenancy-in-common. iv. CP / QCP: Must prove by clear and convincing evidence beneficiary survived T or sever JT into separate halves. v. Life Insurance: Must prove by clear and convincing evidence that beneficiary survived T. Otherwise goes to T‟s estate. VI. RIGHTS OF SURVIVING SPOUSE AND CHILDREN A. (1) Omitted Spouse/Domestic Partner: surviving spouse of a testator and is not provided for therein takes a statutory share of testator‟s estate (50% of CP or QCP owned @ death / in revocable inter vivos trust; SP in amt would receive intestate but NO More than 50%), except if it was intentional, testator provided outside the will in lieu of a testamentary provision, waiver by spouse. i. Waiver: is a voluntary relinquishment of a known right that is in writing, signed before or during marriage, with full disclosure of testator‟s finances, and independent counsel by the waiving spouse. ii. Even if no disclosure by T or independent representation for waiving spouse, waiver still valid if 1) waiving spouse had or should have had knowledge of Ts finances; or 2) waiver was in fact fair iii. In no event however, will waiver be enforced if it is unconscionable B. (2) Pretermitted Children: a child born or adopted after the testamentary instrument is executed or not provided for therein will receive an intestate share of the estate, unless it was intentional from the instrument, the devise was substantially all of his estate to the parent of the omitted child, or the testator provided outside the instrument in lieu of a testamentary provision VII. BARS TO SUCCESSION A. (1) Homicide: A person who feloniously and intentionally kills decedent is not entitled to any benefit from D‟s estate by will, trust, intestacy, life insurance, joint tenancy or otherwise. Establish conclusively by conviction or guilt by preponderance of the evidence. No anti-lapse applies. B. (2) Elder Abuse: A person found liable by clear and convincing evidence of elder abuse will be treated as if she/he predeceased decedent. Includes physical abuse, neglect or fiduciary abuse C. (3) No Contest Clause: Will be enforced unless beneficiary, with reasonable cause, brings contest on grounds of forgery, revocation, or invalid transfer to person who drafted instrument VIII. OTHER ISSUES: A. Contracts To Make/Not Revoke A Will or Devise: i. Contracts concerning wills are valid if the will states the material provisions of the contract, there is express reference in the will to a contract, there is a signed writing by the decedent evidencing a contract, there is clear and convincing evidence of an agreement between decedent and promisee, or there is clear and convincing evidence of an agreement between decedent and a third person for benefit of claimant. ii. Cause of action accrues when decedent dies, except where decedent is engaging in fraudulent conduct that is fraud on the promisee. B. Joint wills: wills of two or more people on one document are probated once when one person dies and again when the other dies;
  4. 4. WILLS 4 C. Mutual wills: separate wills of two or more people on one document which are reciprocal i. There is no presumption of a contract not to revoke or make a will ii. It may be evidence of a contract, in conjunction with other evidence. D. Remedies: plaintiff can sue decedent‟s estate for damages, specific performance, or a constructive trust remedy. E. Restrictions on Testamentary Dispositions i. Community property: a testator can only dispose of ½ of the community property. ii. Quasi-community property: a testator can only dispose of ½ of the quasi-community property at death. 1. Inter Vivos Transfers. A testator may transfer his QCP in an inter vivos transfer except the transfer is not allowed if deemed illusory & surviving spouse invokes widow‟s election. iii. Widow’s election: the widow can elect to take the testamentary share or the ½ community property. F. Distribution of Estate. i. After Acquired Property. include property acquired after the will was executed. ii. 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. iii. Increase After T’s Death and During Probate. Beneficiaries of specific devises receive all increases; however, as a general rule, general devisees do not receie any increase, except interest on gifts not distributed on year after T‟s death. iv. Abatement. 1. Ommitted Children / Ommitted Spouse. Order of abatement is 1) property not passing by will / inter vivos trust 2) then all beneficiaries of T‟s will & revocable inter-vivos trust (pro rata). a. Specific Gifts. The court can exempt a specific gift if abating specific gift would defeat obvious intention of T. 2. General Debts of T. order of abatement is 1) intestate property, 2) residuary gifts, 3) general gifts to non- relatives, 4) general gifts to relatives, 5) specific gifts to non-relatives, then 6) specific gifts to relatives. v. Exoneration. Unlike the common law view, California does not require automatic exoneration of debt encumbering specific gifts. Rather, the devisee takes the specific gift subject to the encumbrance, unless T‟s will states otherwise (not general direction “to pay all my just debts”) G. Will Substitutes. i. Gifts Causa Mortis. a gift of personal property made in contemplation of imminent death that is delivered, either actually, symbolically, or constructively (modernly found whenever donor has done everything possible to effectuate delivery & no issue of fraud & mistake). 1. Survival. If donor survives the peril, the gift is revoked by operation of law. ii. Totten Trusts.

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