Wills and Trusts

Generally, what is Freedom of Disposition? Generally, what are some of its restrictions?

1. Property owners have the nearly unrestricted right to dispose of their property as they please, subject to some restrictions

   1. Restrictions exist to curtail transfers with a purpose that is prohibited or restricted by an overriding rule of law

      1. Creditors rights, spousal rights, unreasonable restraints on alienation or marriage, racial or categorical restrictions, encouraging illegal activity, RAP and Rule against Accumulations

Shapira v. Union National Banks (Facts, Rule, Takeaways, Jx Split)

1. Refresher facts

   1. Dad left share to 3 children, but for boys share was contingent upon marrying Jewish girl no later than 7 years after death

2. Rules

   1. A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy

      1. An absolute restraint would not be upheld

      2. Reasonableness of condition has temporal and geographic components

      3. Subjective conditions (“devout Jewish girl”) not sufficient

   2. The great weight of authority in the United States is that gifts conditioned upon the beneficiary’s marrying within a particular religious class or faith are reasonable (partial restraint)

3. Further takeaways

   1. Strong policy in favor of effectuating the intent of the deceased subject to PP

   2. Const challenges difficult because there must be state action

      1. Shelley v Kraemer protects from state action prohibited by state statute

4. Jurisdictional split

   1. Restatement (Third) of Trusts 

      1. In determining whether violates PP, courts should balance donor’s FOD against other social values and the effects of DH control on the subsequent conduct or personal freedoms of others”

      2. Restricting based on marriage pertaining to a particular faith would be INVALID

Hodel v. Irving (Facts, Rule, Takeaways)

1. Refresher facts

   1. Congress’s 1983 Indian Land Consolidation Act §207 barred inheritance of tiny fractional trust interests, forcing escheat to tribes, which Sioux heirs challenged.

2. Rules

   1. A total abrogation of the rights to descend and devise property will not be upheld

3. Takeaways

   1. Tragedy of the anti-commons. Granted too many people property rights, preventing effective use

   2. 5th amendment taking where the value was not de minimis, statute was overbroad, and statute took away right to transmit by descent and devise

      1. If one of these were different, outcome may have changed

Shaw Family Archives v. CMG Worldwide (Facts, Rule, Takeaways, Jx Split)

1. Refresher facts:

   1. Marilyn Monroe, residuary clause for remaining property rights

   2. Right of publicity did not exist at time of death

2. Rule

   1. An individual cannot pass by will a statutory property right they did not have at time of death

   2. It instead passes by intestacy

3. Other Takeaways

   1. Five months after Shaw, CA signed amended legislation to recognize a posthumous right of publicity that is devisable at death, even by a general residuary clause in a will made before the statute was enacted

4. Jurisdictional Split

   1. Under UPC, posthumously acquired property passes by will (with sufficient language in will to support it)

Define: Expectancy

A donee’s interest in a future inheritance, which remains subject to the donor’s change of mind

What laws applies to real property, personal property?

1. Generally, law of the state where the decedent was domiciled at death governs the disposition of personal property

   1. Will is thus first probated in the Jx of domicile at death

   2. This is primary or domiciliary jurisdiction

2. Generally, the law of the state where the decedent’s real property is located governs the disposition of real property

   1. Ancillary probate in this Jx is required if there is real property there

   2. To avoid the costs and delay of an ancillary probate proceeding, lawyers commonly advise clients with real estate in another jurisdiction to put the property in an inter vivos trust

Define: Personal representative

 fiduciary appointed in probate to collect, manage, and distribute estate; includes executor (named in will) or administrator (court-appointed)

Define: Fiduciary duty

Inventory property, protect/manage assets, process creditor claims, file tax returns, distribute property

Define: Power of Appointment

gives power to someone else to decide where property goes (like deciding which kid to give a house to)

What are probate, probate property, and nonprobate property?

1. Probate = to have an estate administered in probate court

   1. Property that passes through a decedent’s will or by intestacy is said to be probate property

   2. Property that passes by will substitute outside of probate is nonprobate property

How are digital assets handled in probate?

1. Digital assets are difficult to access by the personal representative to wind up the decedent's affairs

2. Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA),  (2015, adopted in 45 states by 2020)

   1. Personal representative cannot access content of decedent’s electronic communications without express consent (will, trust, power of attorney, or online tool)

   2. But Representative may access records/metadata (dates, times, sender and recipient addresses) of electronic communications

   3. Posthumous digital asset control follows a hierarchy:

      1. User’s instructions in an online tool provided by the service provider (highest priority, similar to POD/TOD designations)

      2. User’s instructions in a will, trust, power of attorney, or other written document

      3. Terms-of-service agreement for the account

   4. If no user instructions and TOS prohibits fiduciary access, RUFADAA default rules bar fiduciary access

Three core functions of probate

1. it provides evidence of transfer of title to the new owners, making the property marketable again and allowing the new owner to fend off rival claimants; 

2. it protects creditors by providing a procedure for payment of the decedent’s debts; and

3.  it distributes the decedent’s property to those intended after the decedent’s creditors are paid.

What are the four main will substitutes?

1. Inter vivos trust

   1.  Trust generally

      1. When property is put in trust, the trustee holds it for the benefit of one or more beneficiaries. The trustee distributes the property to the beneficiaries in accordance with the terms of the trust.

   2. Property held in a testamentary trust created under the decedent’s will passes through probate

   3. Property put in an inter vivos trust during the decedent’s life passes in accordance with the terms of the trust, avoiding probate administration

2. Pay on Death (POD) and Transfer on Death (TOD) Contracts

   1. Bank, brokerage, mutual fund, pensions, retirement accounts allow for this

   2. The account custodian distributes the property at the decedent’s death to the named beneficiary. To collect property held under a POD or TOD arrangement, all the beneficiary needs to do is file a death certificate with the custodian

3. Life Insurance

   1. The proceeds of a life insurance policy on the decedent’s life are paid by the insurance company to the beneficiary named in the insurance contract. The company pays upon receipt of a death certificate of the insured.

4. Joint Tenancy

   1. Under the theory of joint tenancy, the decedent’s interest vanishes at death. The surviving joint tenant owns the whole property free of the decedent joint tenant’s interest.

Can probate be avoided and how?

1. In short, yes

   1. Through will substitutes

2. Statutes in almost every state, and UPC §§ 3-1201 to 3-1204, permit the decedent’s successors to avoid probate if the amount of property involved is small, often requiring nothing more than an affidavit of the successor in a summary administration. In most states the figure defining a small estate eligible for summary administration ranges from $25,000 (as in UPC § 3-1201) to $100,000

How is disinheritance by will treated?

1. Honored nowadays

2. But minors and spouses will still be protected

CPC § 8502. Grounds for Removal

1. A personal representative may be removed from office for any of the following causes:

   1. The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.

   2. The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.

   3. The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.

   4. Removal is otherwise necessary for protection of the estate or interested persons.

   5. Any other cause provided by statute

CPC 28 - Community Property Defined

1. Community property” means:

   1. (a) Community property heretofore or hereafter acquired during marriage by a married person while domiciled in this state.

   2. (b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person while domiciled elsewhere, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition.

   3. (c) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired during the marriage by a married person in exchange for real or personal property, wherever situated, that is community property, or a substantially equivalent type of marital property, under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired.

How are Community Property and Quasi-Community Property treated upon death in CA?

CPC § 100 Community Property (101 Quasi-Community Property)

Upon death of married person/married person domiciled in this state, one half goes to spouse, one to the decedent

CPC 240 - Distributions to Issue

1. (Modern Per Stirpes)

   1. Divide the property into equal shares based on the number of living members in the nearest generation with surviving descendants, plus any deceased members of that generation who left descendants

   2. Each living member of that nearest generation receives one share

   3. The share of each deceased member of that generation who left descendants is divided equally among their living descendants, using the same method.

CPC § 6401 Intestate Share of Surviving Spouse

1. The decedent’s share of community property goes to surviving spouse, meaning they get 100%!!

2. Under 6401(c), separate property is distributed:

   1. (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

   2. (2) One-half of the intestate estate in the following cases:

      1. Where the decedent leaves only one child or the issue of one deceased child.

      2. Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them.

   3. (3) One-third of the intestate estate in the following cases:

      1. (A) Where the decedent leaves more than one child.

      2. (B) Where the decedent leaves one child and the issue of one or more deceased children.

      3. (C) Where the decedent leaves issue of two or more deceased children.

   4. Even unmarried couples can be protected by intestate succession (common law marriage)

   5. Sometimes there can be an implied contract to make a will “I promise to take care of you for life”

Putative spouse doctrine

1. Estate of Leslie, 37 Cal. 3d 186, 689 P.2d 133, 207 Cal. Rptr. 561 (1984) held that a putative spouse (one who believed, contrary to fact, they were validly married) is entitled to surviving spouse’s share and to priority of appointment as administrator under the probate code.

2. In re Domestic Partnership of Ellis & Arriaga, 162 Cal. App. 4th 1000, 76 Cal. Rptr. 3d 401 (2008) held that the putative spouse doctrine applies to domestic partners.

CPC 6402 - Share Not Passing to Surviving Spouse

1. Part of the estate not passing to the SS goes as follows:

   1. To the children and their descendants (issue). If same degree, they share equally; if different degrees, follow Section 240.

   2. If no issue, to the parents equally.

   3. If no issue or parents, to siblings and their descendants. Same rules of equal or unequal degree apply under Section 240.
      
      

   4. If none of the above, to grandparents equally, or to their descendants if no grandparents survive. Same Section 240 rules apply.

   5. If none of the above, to the descendants of a predeceased spouse. Same Section 240 rules apply.

      1. Pre-deceased spouse must have died during the marriage. Does not apply to divorced spouse who then dies

   6. If none of the above, to next of kin of equal degree. If equal degree but through different ancestors, those through the nearer ancestor are preferred.

   7. If none of the above, to the parents of a predeceased spouse, or to their descendants if both parents are deceased. Same Section 240 rules apply.

CPC 220 - Simultaneous Death, In General

1. Except as otherwise provided in this chapter [§§ 220-226], if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.

CPC 6403 - 120 hour Survival Requirement for Intestate Succession

1. A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state.

   1. But, doesn’t apply if death was before January 1 1990

CPC § 6406. Relatives of the Halfblood

1. Except as provided in Section 6451, relatives of the halfblood inherit the same share they would inherit if they were of the whole blood.

UCC Section 2-101 Intestate Estate

1. (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this [code], except as modified by the decedent’s will.

2. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.

UCC § 2-102. Share of Spouse

1. The intestate share of a decedent's surviving spouse is:

   1. (1) the entire intestate estate if:

      1. (A) no descendant or parent of the decedent survives the decedent; or all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

   2. (2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

   3. (3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;

   4. (4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

UCC SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE

1. (a) Any part of the intestate estate not passing to a decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:

   1. (1) to the decedent’s descendants by representation;

   2. (2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives;

   3. (3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;

   4. (4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:

      1. (A) half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and

      2. (B) half to the decedent’s maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation;

   5. (5) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).

2. (b) If there is no taker under subsection (a), but the decedent has:

   1. (1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or

(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.

UCC 2-105. No Taker

If there is no taker under the provisions of this [article], the intestate estate passes to the state.

Generally, 3 systems of distribution of shares

1. English per stirpes

2. Modern per stirpes

3. 1990 UCC under 2-106b, per capita at each generation

English per stirpes

1. Treats each line of descent equally. 

2. The property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living (thus the decedent’s children are the root generation). The children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person

Modern per stirpes (CA)

1. Under this system, one looks first to see whether any children survived the decedent. 

2. If so, the distribution is identical to that under English per stirpes. 

3. If not, the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren. Under modern per stirpes, in other words, the root generation at which the decedent’s estate is divided into shares is the one nearest to the decedent in which one or more descendants of the decedent are alive. Any deceased descendant in that level is represented by her descendants using an English per stirpes distribution.

1990 UPC, per capita at each generation

1. UPC 2-106(b)

   1. The initial division of shares is made at the closest generation in which one or more descendants are alive (the same root generation as under modern per stirpes), but the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives in the next generation.

Simultaneous Death and Intestate Succession

1. Janus v. Tarasewicz 

   1. Refresher facts

      1. Tylenol cyanide couple death

   2. Rule

      1. Order of survival must be based on sufficient evidence

2. Uniform Simultaneous Death Act

   1. If no sufficient evidence of survivorship, the beneficiary is deemed to have predeceased the donor

3. UPC 2-104

   1. Claimant must establish survivorship by 120 hours by clear and convincing evidence

General rule for adoption under 2008 UPC

Adoption severs relationship with genetic parents

Hall v. Vallandingham

1. adoption does not confer upon the adopted child more rights and privileges than those possessed by a natural child

2. Once a child is adopted, the rights of both the natural parents and relatives are terminated

3. “The Legislature giveth, and the Legislature taketh away.”

Jurisdictional splits for adoption and inheritance

1. Jx Splits

   1. In a few states, as in Hall, an adopted child inherits only from adoptive parents and their relatives. 

   2. In a few others, an adopted child inherits from both adoptive parents and prior parents and their relatives. 

   3. In a majority of states, an adopted child inherits from adoptive relatives and also from prior relatives only if the child is adopted by a stepparent. 

      1. The 1990 UPC falls into the third category (§ 2-114(b)):

         1. An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.

Minary case rule

Adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when he clearly was not intended to be so covered should not be permitted

Generally, inheritance rights of posthumous and nonmarital children

Each can take normally under will or intestate succession

Surrogacy and inheritance rights

1. Jx split

   1. Some states follow intent and surrogacy contract

   2. Other states, need to adopt the child

Advancements

1. Under Common Law, all lifetime gifts were presumed to be advancements

   1. Rebuttable

   2. Based in equity

2. Modern under CPC and UPC

   1. Many states have reversed the common law presumption of advancement. 

      1. In these states, a lifetime gift is presumed not to be an advancement unless it is shown to have been intended as such. 

   2. Some states and UPC § 2-109(a), below, go even further, requiring that the intention to make an advancement be declared in a writing signed by the parent or child. 

      1. The UPC also changes the common law rule if the child does not survive the parent. Under § 2-109(c), the advancement is not taken into account in determining the share of the child’s descendants.

Hotchpot

1. If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into hotchpot

2. Steps

   1. Add any advancements to the estate to create the hotchpot total.

   2. Divide the hotchpot equally among all children.

   3. Subtract the amount of advancement each child already received from their share.

   4. If a child’s advancement is equal to or greater than their full share, they take nothing more.

   5. If an advancement exceeds a child’s share, that child is excluded from hotchpot, and the remaining estate is divided equally among the other children.

Generally, bars to succession

1. Homicide

2. Disclaimer

CPC 6110 Requirements for Formal Will

1. Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.

2. The will shall be signed‍‍ by one of the following:

   1. By the testator.

   2. In the testator’s name by some other person in the testator’s presence and by the testator’s direction.

   3. By a conservator pursuant to a court order to make a will under Section 2580.

3. (c)(1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.

   1. CA is a conscious presence Jx, even though statute only says “presence”. And signed within witness’ lifetime

   2. CPC: Witnesses must see either the signature of the will, the acknowledgement of the will, or acknowledgement of the signature. Witnesses have to be present at the same time when they see one of the three things.

4. (2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

UPC 2-502 Requirements for Valid Will

1. (a) [Witnessed or Notarized Wills.] Except as otherwise provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:

   1. (1) in writing;

   2. (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and

   3. (3) either:

      1. (A) signed by at least two individuals, each of whom signed within a

      2. reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will; or

      3. (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgements

Four Formalities

1. Evidentiary Function

   1. Supply satisfactory evidence to the court of the testator’s intent

   2. Signature indicates finality of intent, same with witnesses

2. Ritual/Cautionary Function

   1. The performance of some ceremony for the purpose of impressing the transferor with the significance of his statements

3. Protective Function

   1. Prophylactic purpose of safeguarding the testator

   2. Lack of capacity, undue influence, fraud

4. Channeling Function

   1. Help put the maker’s intent into a form that personal representative, courts, and others can understand and follow, without lots of questions about meaning or ambiguities, which can lead to confusion, disagreements, or lawsuits.

Signature: Rule Statement and Facets

1. Rule statement

   1. A mark made with the intent to authenticate the document as a will

2. Does not need to be a full name, could be a mark

3. Electronic signature/electronic document should prompt mention of concerns of fraud

   1. Who found the document? did they have the opportunity to change it? 

4. Mark made by someone else at direction of testator, must also be done in conscious presence

Strict Compliance

1. Traditional Law

   1. Must be satisfied exactly

   2. Aims to prevent a false positive

Witnesses: Jx Splits for Interested Witnesses

1. Generally, witnesses have to be disinterested.

2. 4 way Jx split:

   1. Interested person cannot be a witness

   2. UPC: witness can be interested

   3. CPC: interested witnesses = presumption of undue influence/fraud

   4. Others (and CA): Purging statute for interested witnesses, forces witness to only receive what they would under intestate succession

CPC 6112 - Witnesses

1. Any person generally competent to be a witness may act as a witness to a will.

2. A will or any provision thereof is not invalid because the will is signed by an interested witness.

3. Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.

Attestation Clause

1. Standard, but not required in any state

2. Gives rise to rebuttable presumption of due execution

What does “presence” mean? Concerns?

1. What does presence mean?

   1. Line of Sight

      1. The testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look

   2. Conscious Presence

      1. The testator, through sight, hearing, or general consciousness of events, comprehends that the witness is signing

2. Concerns

   1. Fraud, is it the actual document?

      1. Telephonic presence normally not okay

   2. Physical presence

      1. Again, telephonic 

      2. Zoom may also be concerning

CPC 6105 - Conditional Will

Will still probate a will, even if condition was not met

Generally, two main exceptions to strict compliance

1. Substantial Compliance, 2. Harmless Error

Substantial Compliance

1. Is there clear and convincing evidence that decedent intended the document in question to be their will?

2. The finding of a formal defect should lead not to automatic invalidity, but to a further inquiry: [1] does the noncomplying document express the decedent’s testamentary intent, and [2] does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purposes of the Wills Act?

3. Under substantial compliance analysis (for Jxs that allow substantial compliance), still go through analysis of all Functions of Formalities

   1. Core question: Does this remark indicate finality of intention to transfer? 

   2. Evidentiary Function

      1. Supply satisfactory evidence to the court of the testator’s intent

      2. Signature indicates finality of intent, same with witnesses

   3. Ritual/Cautionary Function

      1. The performance of some ceremony for the purpose of impressing the transferor with the significance of his statements

   4. Protective Function

      1. Prophylactic purpose of safeguarding the testator

      2. Lack of capacity, undue influence, fraud

   5. Channeling Function

      1. Standardization of form simplifies administration

Harmless Error

1. CA is a harmless error jurisdiction only for witness signature defects (confirm)

   1. But is substantial compliance for everything else

2. Under UPC 2-503, adopted in 12 states (including CA)

   1. § 2-503. Harmless Error

      1. Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute

         1. (1) the decedent’s will,

         2. (2) a partial or complete revocation of the will,

         3. (3) an addition to or an alteration of the will, or

         4. (4) a partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the will.

In re Estate of Hall

1. First executed will in 1984, then 13 years later Jim and Wife drafted joint will

2. Jim asked attorney if Joint Will Draft could stand as a will under they got final version. They signed there and notarized it without anyone else present

3. Original Will then torn up

4. After Jim died, wife tried to probate joint will. Daughter tried original will

2. Issue

   1. No witnesses present

      1. Daughter harps on this

      2. Court says this is irrelevant

      3. Jim and Wife intended the draft to be their will under the cleaner, more final one was provided

3. Rule

   1. The harmless error rule may be invoked to excuse a defect in attestation.

In re Estate of Horton

1. Mother contesting will of son, Duane Francis Horton

2. Facts

   1. Duane committed suicide in December 2015 at age 21

   2. Left an undated, handwritten journal entry stating his final farewell note was in an app on this phone

   3. Farewell note was fully typed, included one paragraph regarding distribution of his property

3. Issue and Analysis

   1. Whether this is a valid will or otherwise falls under an exception

      1. Unwitnessed and undated, so doesn’t meet formal requirements

      2. But, clear and convincing evidence that Duane intended this to be his will

         1. Lower court considered contents of the document as well as circumstances surrounding the death 

         2. Note is clearly testamentary in nature, contemplates death and discusses where he wants his property to go (or not go)

      3. Extrinsic evidence can be used to determine intent

Castro case

1. Facts

   1. Castro presented to hospital and needed blood transfusion. Declined even though this would mean death

   2. Spoke with his brothers about preparing a will

      1. No paper, so wrote it on a Samsung tablet using a Notes app

      2. Brothers testified that Castro would say what he wanted and brother would write it 

      3. Will was signed by brothers and nephew as witnesses, though nephew only Castro only acknowledged in nephew’s presence that he signed the will

   3. Tablet remained with brother afterwards

   4. Javier died about a month after signing

2. Issues and Analysis

   1. Is this a writing and is it signed?

   2. No particular medium is required

   3. Graphical image of Castro’s signature is also valid

3. Is this the last will and testament of Castro?

   1. No attestation clause, but exception applies because

      1. Castro prepared/caused to be prepared the document

      2. Castro signed the document and intended it to be the will

      3. This was done in conscious presence of two or more witnesses

Holographic Wills

1. Defined

   1. Written by the testator’s hand and is signed by the testator, no witnesses needed

   2. Permitted in CA, + about half of states

      1. In Jxs that don’t accept holographic will, argue harmless error

   3. Evidentiary function is the most important for holographic wills

   4. Preponderance of the evidence

In re Kimmel’s Estate

1. Facts

   1. Absolute nonsense of a letter, sent to two of his children. Died same day

2. Issues

   1. Is this testamentary in nature?

      1. Hard to see how anything else was intended, given his poor health and writing “if anything happens”

   2. Is the signature to it sufficient compliance?

      1. This is how he normally signed letters, so sufficient

Preprinted will without witnesses

If not attested by two witnesses, could still be holographic if enough was handwritten by decedent

In re Estate of Gonzalez

1. Facts

   1. Fermin Gonzalez visited brother and brother’s wife before a trip. Wanted to prepare a will

   2. Preprinted will form

      1. First copy, Gonzalez handwrote his wishes

      2. Document signed by Gonzalez, but not witnesses

      3. Blank copy also presented, Gonzalez wanted to copy info over, so brother and wife signed blank form

      4. Gonzalez died a few weeks later

   3. 3 children moved to probate the will, 2 children challenged

2. Issue and Analysis

   1. Whether valid will

      1. Not a normal will because no witnesses

      2. Holographic will?

         1. Signature and material provisions are in handwriting of the testator

3. Rule

   1. We agree with the Supreme Court of Arizona and hold that printed portions of a will form can be incorporated into a holographic will where the trial court finds a testamentary intent, considering all of the evidence in the case

      1. Jx Split

         1. Other courts have ignored all of the preprinted words, and determined whether the handwritten words, taken alone, fulfill the requirements of a holographic will.

Questions that arise from a holographic will, generally

A holographic will must be written by the testator’s hand and signed by the testator. Out of this simple formulation arise two problems: (1) where and how the testator must sign the holograph, and (2) how much of the holograph must be in the testator’s handwriting.

Signature for holographic will

1. Signature

   1. In almost all states that permit holographs, the testator may sign the will at the end, at the beginning, or anywhere else on the face of the document. But if the holograph is not signed at the end, there may be doubt whether the testator intended her name to be a signature and the will to be final and complete.

   2. Doesn’t have to be the same type of signature used to sign other legal documents (Estate of Williams)

Extent of Testator’s Handwriting

1. To what extent must a holographic will be in the testator’s own handwriting? The statutes fall roughly into three generations.

2. First Generation: entirely written, signed, and dated

3. Second Generation (1969 UPC): material provisions and signature

   1. Third of states permitting holographic wills use this

4. Third Generation (1990 UPC): material portions and extrinsic evidence allowed

   1. Third of states permitting holographic wills use this

CPC 6111

1. a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

2. (b) If a holographic will does not contain a statement as to the date of its execution and:

   1. (1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

   2. (2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

3. (c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's own handwriting or as part of a commercially printed form will.

CPC 6111.5

Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.