How to Ace FYLSE/Wills Outline

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Choice of Law[edit]

Under CA law, an out of state will is valid if executed under CA law, the law of the state where the will is executed, the law of the place of testator's domicile or the law where the testator was a national.

In 1996, Hank married Wanda, his second wife. Thereafter, while still domiciled in State X, Hank executed a will
—J04Q3

Valid Formal Will[edit]

A will is valid if the testator is at least 18 years old and of sound mind, possess the requisite testamentary intent, signs the will in the joint presence of 2 witnesses that understand the document is the testator's will and who signs the will.

Tess was a widow with two adult children: Sam, from whom Tess was estranged, and Donna, to whom Tess was devoted. In 1992, Tess validly executed a typewritten will containing the following provisions:

A. My Bigco stock to my friend, Fred.

B. The residue of my estate to my daughter, Donna.

—J96Q6

Witness Issues[edit]

The general rule is that a beneficiary cannot be considered as a disinterested witness for purpose of attesting to a will. However, if a witness is deemed to be interested, this does not affect the validity of the will. Rather, this simply means that the interested witness only takes that share of the estate that he would be entitled to in the absence of the will (i.e., his intestate share).

Under the California law, a trustee of a trust is not considered a beneficiary under a will. Rather, the trustee is a fiduciary who does not take a gift under the will in her personal capacity.

In 2004, Tom, believing he needed to do more for the disabled elderly, asked Lilly to type a new will and told her he would take care of executing it. She typed the will, including in it the terms Tom dictated. He then asked Lilly to send two attendants into his room to act as witnesses. After the first of the attendants arrived and was present, Tom explained the purpose of the document and then signed his name at the end of the document. The first attendant then signed her name as a witness and left the room. Immediately thereafter the second attendant came into Tom’s room and quickly signed the document as a witness.Lilly was not present when Tom or the attendants signed their names. The 2004 document stated “
—06Q

Tess took this will to the house of Wit, a neighbor, declared to Wit that it was her will, and signed the will in Wit’s presence. Wit then signed the will as witness, although he did not know its contents.

Tess next took the will to the house of Ness, another neighbor, and asked Ness to “witness this paper.” Ness signed the will as witness, although he did not understand that it was a will.|J96Q6}}

No one was present when she signed and dated the form and hence no one signed as a witness to her signature.
—F11Q1
(In executing a will,) Ted showed his signature on the document to Jane and Dot, and said, "This is my signature on my will. Would you both be witnesses?" Jane signed her name. Dot was about to sign when her cell phone rang, alerting her to an emergency, and she left immediately. The next day, Ted saw Dot. He had his will with him and asked Dot to sign. She did.
—J13Q5
The will left all of the rest of Hank's estate to Wanda if she survived him. (...)Wanda was one of the two witnesses to the will.
—04Q

Valid Holographic Will[edit]

Under California Probate Code § 6111, a holographic will, whether or not witnessed, is valid if the signature and the material provisions are in the handwriting of the testator.

Theresa hand-wrote a codicil to her will.
—J02Q1
Ted executed a will. With the exception of the signature of a witness at the bottom, the will was entirely in Ted’s own handwriting and signed by Ted.
—J01Q6
(Tess) went to an office supply store, got a preprinted will form, and filled in the following in her own handwriting:
—F11Q1
In 2012, Ted wrote in his own hand, "I am married to Bertha and all references to ‘my wife’ in my will are to Bertha." He dated and signed the document.
—J13Q5

Capacity[edit]

A testator who executes a will must have capacity when the will is executed for the will. Capacity requires (1) T must be at least 18 (2) T must understand the natural objects of her bounty, (3) must understand the nature and value of property (4) T must understand that she is making a will.

At the time (of executing a will), she (testator) was addicted to prescription painkillers and was an alcoholic.
—F11Q1
Wilma, an elderly widow with full mental capacity put $1,000,000 into a Trust.
—08Q

Insane Delusion[edit]

Even if a testator had capacity at the time she executed a will, affected parts of a will will be invalid if (1) the testator had a false belief; (2) which was the product of a sick mind; (3) there was no evidence supporting the belief; and (4) it affected w

Revocation of a Will[edit]

Will is freely revocable during the testator's lifetime. A will can be revoked either expressly or impliedly. Express revocation requires the testator to use language that makes intent clear that the original will is revoked by a later will. A will can be impliedly revoked if the second will contradicts with the first will and the second will bequeaths substantially all of testator's property. A will may be revoked by a physical act or by execution of a subsequent instrument.

Revocation by Physical Act[edit]

Under California Probate Code § 6120, a will is revoked by being burned, torn, canceled,obliterated, or destroyed, with the intent and for the purpose of revoking it.

After Tess’s death, both wills were found in her safe deposit box. The 1992 will had a large “X” drawn across all of its pages. The 1995 will was unmarred.
—J96Q6
Tom died in 2002. The will and codicil were found in his safe deposit box. The will was unmarred,but the codicil had the words “Null and Void” written across the text of the codicil in Tom’s handwriting, followed by Tom’s signature.
—03Q6

Incorporation by Reference[edit]

California Probate Code § 6130 provides that a writing in existence when a will is executed maybe incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Codicil[edit]

A codicil supplements an existing will executed with full formalities according to the statute of wills that revokes only inconsistent provisions of the prior will and adds new provisions. Both the codicil and prior will are valid and deemed executed as of the date of the codicil.

In 1998, Tom executed a valid will. The dispositive provisions of the will provided:
1. $100,000 to my friend, Al.
2. My residence on Elm St. to my sister Beth.
3. My OmegaCorp stock to my brother Carl.
4. The residue of my estate to State University (SU).

In 1999, Tom (testator) had a falling out with Al and executed a valid codicil that expressly revoked paragraph 1 of the will but made no other changes.

—03Q6
In 2012, Ted wrote in his own hand, "I am married to Bertha and all references to ‘my wife’ in my will are to Bertha." He dated and signed the document.
—J13Q5

Dependent Relative Revocation[edit]

The doctrine of dependent relative revocation (DRR) applies when a testator revokes his will upon a mistaken belief that another disposition of his property would be effective and but for this mistake would not have have voted the will.

Tom’s will make the following dispositions:
Article 1: I leave $10,000 to my friend Frank.
Article 2: I leave my shares in Beta Corp stock to my friend Frank.
Article 3: I leave $80,000 to my sister Sue’s issue.
Article 4: I leave the residue of my estate to my wife.

The $10,000 figure in Article 1 was crossed out and $12,000 was handwritten in Tom’s hand above the $10,000 figure. Next to the $12,000 Tom had handwritten, “Okay.2/15/02.”

—F07Q4
I hereby revoke all prior wills.(Tess revoked the 2007 will upon the belief that the 2010 will was valid.)
—J96Q6

Revival[edit]

The doctrine of revival holds that revocation of subsequent will serves to automatically reinstate the earlier will. This rule is NOT followed in California.

Integration[edit]

Integration permits the bringing together of separate papers to a single will, if certain requirements are met.

Undue influence, Duress, Menance, Fraud[edit]

Under California Probate Code § 6104, the execution of a will is ineffective to the extent it was procured by duress, menace, fraud, or undue influence.

General and Specific Gift[edit]

A general gift is one which refers only to the economic value of the property, while a specific gift describes a particular piece of property.

1. I give all of my 100 shares of XYZ Corporation stock to my friend, Frank.

2. I give my automobile to my cousin, Charles.

—F91Q1
In 1998, Tom executed a valid will. The dispositive provisions of the will provided:
1. $100,000 to my friend, Al.
2. My residence on Elm St. to my sister Beth.
3. My OmegaCorp stock to my brother Carl.
4.The residue of my estate to State University (SU).
—03Q6

Class Gift[edit]

If the gift is construed as a class gift, only surviving class members and not a specified person take because the will speaks at the time of the testator's death.

I give $ 100,000 in equal shares to my grandchildren.
—F91Q1

Lapse[edit]

Under California Probate Code § 21109, a transferee who fails to survive the testator does nottake under the will.

Anti-Lapse[edit]

California has an anti-lapse statute. Under California Probate Code § 21110, if a transferee is dead when the instrument is executed, or is treated as failing to survive the testator, the issue of the deceased transferee take in the transferee’s place.

(Testator) My residence on Elm St. to my sister Beth. (...) Beth died intestate, survived only by one child, Norm, and two grandchildren, Deb and Eve, who were children of a predeceased child of Beth.
—03Q6

Residue of Estate[edit]

The beneficiary of a will must survive the testator or the gift lapses and passes by the residual estate.

I give the residue of my estate in equal shares to my friends Mary and Oscar.

<omitted> Alfred was survived by friend, Frank, cousin Charles, grandchildren Allison and Ben, and friend Mary. David, a grandchild of Alfred, who was alive when the will was executed, and friend Oscar has predeceased Alfred. David's child Pat and Oscar's child Karen both survived Alfred.

—F91Q1

Pretermitted Spouse[edit]

If a will or trust is formed before marriage, and the spouse is omitted, it will be presumed the omission was accidental and the spouse will be entitled to his or her intestate share. If divorce has occurred in the interim, it will be presumed the spouse was intentionally omitted and the spouse gets nothing.

Pretermitted Child[edit]

A pretermitted child is one born or adopted after a will was executed. The omitted child is entitled to an intestate share unless the omission was intentional, the child was provided for outside the will or the property was left to a parent when another child was alive at the time of the execution.

In 2001, after reconciliation attempts failed, Tim executed a valid will leaving “all my property to my best friend, Anna.” Later that year, Fred was born to Anna out of wedlock. Tim was Fred’s father, but Anna did not inform Tim of Fred’s existence.
—F06Q2

When a child was born before the will or trust was executed, the testator did not know of the child's existence, the child will be treated as a pretermitted heir and get the intestate share.

(H created a valid trust which did not provide for C) Hank, who had never remarried, died three years after establishing the trust. At the time of his death, the trust was valued at $300,000. Subsequently, it was proved by DNA testing that Hank had another child, Carl, who had been conceived during Hank’s marriage to Wendy, but was born following dissolution of the marriage. Wendy, Carl’s mother, had never told Hank about Carl.
—F11Q3
Ted (testator) then received a letter from a woman with whom he had once had a relationship. The letter stated that Sam, a child she had borne in 1997, was Ted’s son. Ted, until then unaware of Sam’s existence, wrote back in 1998 stating he doubted he was Sam’s father. (...) In 2000, Ted died. After Ted's death, DNA testing confirmed Ted was Sam's father.
—J01Q6

Abatement[edit]

Abatement is the process by which money is cleared up for a new gift by reducing previously existing gifts.

Ademption[edit]

Specific devises that are not present when testator dies are adeemed by extinction. This ademption is not applied to demonstrative gifts and such gifts are satisfied out of other property. In California, whether a gift is adeemed is determined solely by the intent of the testator at the time of the sale of the asset as to whether the new asset was to be a replacement and the bequest not adeemed.

(Tom's will) My OmegaCorp stock to my brother Carl. Tom sold his OmegaCorp andreinvested the proceeds by purchasing AlphaCorp stock.
—03Q6

Per stirpes[edit]

per capita[edit]

Per capita with representation[edit]

Conservator[edit]

A court can appoint a guardian or conservator to act on behalf of a person who lacks the mental capacity to act on their behalf. They have the authority to make legal decisions, such as drafting a new will. However, a conservator still owes the testator a fiduciary duty of care and loyalty. The conservator must act in the best interest of the testator and not make any decisions that are self-serving and are directly adverse to T's interest.

In 2012, the court appointed Greg as conservator for Tess, because of Tess’s failing mental abilities.
—F15Q6

Intestacy[edit]

Under California Probate Code § 6400, any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs.