Wills

Execution

Requirements for all wills:

• Testator must be at least 18 and of sound mind

• T must have a present intent to make a will

Requirements for non-statutory (see last section) will:

• Writing

• Signed

  • Signed by testator or signed by someone in testator’s presence, and at his direction

• Witnessed

  • Witnesses must know the document is a will

  • Both must be present at the same time to witness the testator sign the will or acknowledge the signature

  • Both must sign, but not necessarily in each others’ presence or at the same time, so long as both sign during the testator’s life

For the California Statutory Will:

• Testator must complete the blanks and sign

• Have two witnesses observe

• Have each witness sign in presence of testator

Issues with witnesses

• If witness requirements are not satisfied, the will can be treated as properly executed if the proponent establishes by “clear and convincing evidence” that testator intended the document to be his will at the time he signed it

• Interested witnesses create a rebuttable presumption that witnesses procured the devise by duress, menace, fraud, or undue influence unless there are two other uninterested witnesses

Holographic wills

• Wills that don’t comply with formalities for attested wills, but where the signature and material provisions are all in the testator’s handwriting

• If it is undated and conflicts with another will, it is invalid wrt any inconsistencies

• The testator must evidence a present testamentary intent in the holographic will

  • E.g., a letter to an attorney that says, “Please make changes X, Y, Z to the will and then I’ll sign the update version” likely will not be admitted as a holographic will, because the testator clearly intended that a later document would be the will, rather than intending that the letter itself would be the will

Capacity—fraud

• Misrepresentation, deceit, or concealment of a material fact, known to be false by the wrongdoer, with the intent to deprive a person of property or legal rights or cause injury, and does in fact

  deprive that person.

• Can happen at three points in the process

  • Fraud in the execution: testator doesn’t know he’s signing a will, e.g., “Sign this piece of paper”

  • Fraud in the inducement: wrongdoer influences testator to include certain provisions in the will, e.g., telling someone (falsely) that one of their beneficiaries is dead, such that they then include another beneficiary in their place

  • Fraud in preventing execution or revocation

Capacity—undue influence

• Requirements

  • Influence exerted on T

  • Effect of influence was to overpower free will of T

  • The influence led to a will that would not have been executed but for the influence

• Court must consider (VAAE)

  • Victim’s vulnerability

  • Apparent authority of influencer

  • Actions and tactics of the influence

  • Equity of the result

Common law presumption—triggered when:

• Confidential relationship between T and B

  • Can be attorney-client, doctor-patient, family member caring for elderly dependent

  • Does not apply to relationship between spouses

• B actively participated in procuring or drafting or executing, AND

• Will provisions appear to be unnatural and favor the B alleged to have exerted undue influence

California statutory presumption—rebuttable with clear and convincing evidence of no undue influence

• Triggered when B is any of the parties below:

  • The person who drafted it

  • A care custodian

  • A person in a fiduciary relationship with the transferor who transcribed the instrument

  • A cohabitant or employee of any of the above three

• Note: the presumption is conclusive for the drafter and anyone related to him or living with him

• Exceptions

  • If these apply, then the presumption isn’t triggered, meaning the conclusiveness of the presumption isn’t applicable and that if you want to prove fraud/undue influence you have to do it via some other fashion

    • If beneficiary is a blood relative or cohabitant, OR

    • Transfer valued at less than 5k, OR

  • Instrument reviewed independently by an attorney

    • This one will not save a transfer to the drafter

Conflict of laws

Two questions:

1. Can this will be admitted to probate in CA?

   • Valid in CA

   • Valid under law of state where will was executed

   • Valid under law of state where T domiciled when T executed the will

   • Valid under law of state where T domiciled when T died

2. What jx governs the effect of the will?

   • Real property » where the property is located

   • Personal property » where T was domiciled when T died

Integration and incorporation by reference

• Integration

  • Papers are integrated if they were present at the time the will was executed and testator intended them to be integrated

• Incorporation by reference

  • Writings outside of the will incorporated by reference if they existed at the time the will was executed, will manifests intent to incorporate, and will describes writings in enough detail to identify them

    • List exception: if a writing cannot be incorporated by reference but disposes of limited personal tangible property it will be admitted provided:

      • Referred to in the will

      • Dated and in testator’s handwriting

      • Describes items and beneficiaries with reasonable certainty

      • No one item exceeds 5k and the aggregate does not exceed 25k

Acts of independent legal significance

• Wills can dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will

  • E.g., if the will devises property to persons in T’s employ at the time T dies, that’s fine, because T employs people for non-testamentary purposes

  • E.g., if the will says that the beneficiaries are to be identified by looking at a piece of paper that T will put in his safety deposit box, that will not be covered as an act of independent legal significance, because the piece of paper in the deposit box has no independent legal significance and is trying to do testamentary-like things

    • Note, however, that this piece of paper might have testamentary effect under some other mechanism, e.g., as a holographic will, or because it’s been incorporated by reference into the will

      • But note that incorporation doesn’t work for documents not in existence at the time the will is executed, so if the slip of paper was not then in existence, incorporation wouldn’t work

Codicil

• This is an amendment to an existing will made by testator to change, explain, or republish his will

• It has the effect of republishing the will as of the date of the codicil

  • The effect of republishing is important—if the original will omitted an as-of-yet unborn child, and then the child is born and the codicil is executed but doesn’t include the child, the child will no longer qualify as an omitted child, because the will will have been republished as of the date of the codicil, which will have been after the birth of the child.

• Same requirements as will or holographic will

• Revoking a codicil leaves the will in place, but revoking the will revokes both the will and the codicil

Handwritten changes

• Handwritten changes to holographic wills are given effect

• Handwritten changes to attested wills are not given effect unless the will is re-executed with all of the proper formalities or the handwritten change is independently valid as a holographic codicil

Pour-over wills

• A will that identifies a trust created by the testator into which he can “pour over” his probate assets and thus avoid going through probate if the assets are less than 100k

• Requirements

  • Trust is identified in the will

  • Terms of trust are set forth somewhere besides a will

  • Trust was executed at the same time as, before, or within 60 days of the will

Revocation—basics

Standard revocations

• By physical act

  • The physical act must be accompanied by an intent to revoke, too—e.g., just accidentally destroying the will doesn’t revoke it

  • If the will was executed in duplicate, revoking one revokes the rest

  • Crossing out a beneficiary means those assets go to the residue rather than to the remaining beneficiary

• By subsequent will

  • Express revocation of whole or part of prior will

    • It is permissible to revoke an attested will using a holographic will, and vice versa

  • Implied revocation of whole or part of prior will through inconsistency—i.e., any terms in the old will that are inconsistent with the terms in the new will are revoked

• By operation of law

  • To accommodate an omitted spouse, child, etc.

    • Married after will executed, unless intentionally omitted or otherwise provided for outside of the will

    • Born or adopted after will executed, alive when executed but thought to be dead, or unknown to T because T was unaware of child’s birth

      • Unless intentionally omitted or otherwise provided for outside of the will OR decedent has one or more children and devises substantially all of his estate to the other parent of the omitted child

Revocation—DRR

Dependent relative revocation

• If testator revokes first will in mistaken belief that a substantially similar second will or codicil exists—but it doesn’t—and would not have revoked first will but for the mistaken belief, courts will allow first will to operate

• Note

  • Applies only to the most recently revoked instrument

  • If second will invalid due to fraud, duress, etc. than revocation was never valid so DRR inapplicable

• Example

  • Will says “I give 2k to John.” T then crosses out the “2k” and writes “5k.” The crossing out is invalid, because it was not attested, but it does work a revocation. So, without DRD, John gets nothing. With DRD, John gets the original 2k

Revival

• Will #2 revoked by physical act

  • Will #1 can be revived if there is evidence that T intended the revocation to effect a revival of Will #1

  • Extrinsic evidence permissible to show such intent

• Will #2 revoked by Will #3

  • Will #1 not revived unless it is apparent from Will #3 that T intended Will #3 to revive Will #1

  • No extrinsic evidence allowed here

• By re-execution or re-publication:

  • Re-executed with formalities

  • Republished by codicil

Types of gifts

• Specific gifts—a specific, identifiable piece of property

  • “My house in Inyo County”

• General gifts—from general assets

  • “100 shares of XYZ stock”—compare to “MY 100 shares of XYZ stock” (which would be a specific gift)

• Demonstrative—general gift from a specified property or fund

  • “$5,000, to be paid out of the sale of XYZ stock”

• Residuary—everything that remains after other gifts and debts and taxes are satisfied

Distributions—ademption

• Threshold: does not apply to general or demonstrative gifts

• General case: beneficiary gets nothing

• Special rules for securities

  • If the will says, “MY 200 shares,” then they are adeemed

  • If the will says, “200 shares,” it is read to convey a general gift and then B is entitled to the value of 200 shares

• Additional rule for California:

  • Courts will take into account testator’s intent

  • This means that if the proceeds of a gift are easily traceable, a court may find that there is no ademption

California statutory modifications:

• Any amount of an eminent domain award from the taking of gifted property

• Where the gift is of X stock and then X merges with and into Y, leaving only Y stock, B has the rights to the Y stock

• Proceeds of sale of property by a conservator

Distributions—abatement

Abatement—when gifts are reduced to pay debts and legacies. Order is:

• Property not disposed of by the will

• Residuary gifts

• General gifts to nonrelatives

• General gifts to relatives

• Specific gifts to nonrelatives

• Specific gifts to relatives

Distributions—lapse and anti-lapse

Anti-lapse

• Threshold requirement:

  • The beneficiary is kindred to the testator OR

  • Kindred of a surviving, deceased, or former spouse or domestic partner of the testator AND left surviving descendants

  • Note that this means that anti-lapse does not apply to pre-deceasing spouses

• Basic rule: when B predeceases T, B’s issue stands in his place

  • Issue includes all lineal descendants, not just children

• If simultaneous death:

  • Presumption is that B died first (but this can be rebutted), and then apply anti-lapse

• Special cases

  • Class gifts

    • A gift to a class where one member of the class predeceases T will be split among the members of the class surviving at the time of T’s death

      • Exception: but if the class member who predeceased is within the scope of the anti-lapse statute, then their descendants get what would have been their share

  • Residuary gifts [more or less identical treatment to class gifts]

    • A residuary gift to two or more beneficiaries where one beneficiary predeceases T will be split among the remaining residuary beneficiaries

      • Exception: but if the beneficiary who predeceased is within the scope of the anti-lapse statute, then their descendants get what would have been their share

Distributions—miscellaneous (exoneration, widow’s election, no-contest clauses)

Exoneration

• In CA, exoneration is not available unless will expressly provides for it, meaning B will take the asset subject to a security interest

Widow’s election

• If T attempts to devise all of the community property, then he gives his spouse the following choice: take what you get in the will, and give up your right to the community property; or claim your one-half interest in the community property

Bars to succession

• No contest clauses are valid but states (incl. CA) will not enforce them if the beneficiary has good cause to challenge the will

Distributions—clawbacks of QCP

• Background

  • Unlike true CP, for QCP, a spouse does not own an undivided one-half interest in the QCP during the other spouse’e lifetime, and the other spouse has not power to dispose of one-half of the QCP is they die first

• If the spouse that owns the QCP engages in an illusory transfer of the QCP during his lifetime, the surviving spouse can force a clawback of one-half of the interest transferred if:

  • Decedent died in CA, AND

  • Decedent transferred the property to a party not the other spouse, without written consent of the other spouse, and without consideration of substantial value, AND

  • Decedent retained control over the property in one of these ways:

    • At time of death, decedent retained rights of possession or enjoyment or income from property, OR

    • At time of death, decedent retained power over the principal, OR

    • At time of death, property is held by decedent and another with rights of survivorship

• In the situation above, the clawed-back assets do not go straight to the spouse; rather, they pass through probate and are subject to attachment by creditors

Intestate distributions

120-hour rule:

• To receive from an intestate distribution, B must survive T by 120 hours, or deemed to predecease, unless application of rules results in escheat

Share passing to the surviving spouse:

• CP goes to spouse, such that spouse ends up with all CP

• SP goes is distributed as follows:

  • One third to the spouse if the decedent is survived by more than one child, or one child and descendants of one+ deceased children, or descendants of two+ deceased children

  • One half to the spouse if decedent survived by only one child, descendants of deceased child, or no descendants but a parent or descendant of a parent

  • All if decedent leaves no children, parents, siblings or descendants of deceased siblings to spouse unless there is surviving issue, parent, siblings, or issue of siblings

Share not passing to the surviving spouse:

1. Special rule for portion of property attributable to predeceased spouse

   • The following property will go to predeceased spouse’s heirs rather than to the decedent’s heirs

     • Real property of spouse who died within 15 years of decedent

     • Personal property worth 10k or more of spouse who died within 5 years of decedent

2. Descendants take share per capita by representation

3. If there are no descendants, the estate passes to:

   • Parents

   • Issue of parents

   • Grandparents

   • Issue of grandparents

   • Issue of predeceased spouse

   • Next of kin

   • Parents of predeceased spouse

   • Issue of parents of predeceased spouse

   • To the state

If children inherit…

• Watch for special cases, discussed in a separate card

Intestate distributions—types of distribution

• Per capita

  • Distribute proportionally at level 1, then pool and distribute proportionally at level 2, etc.

• Per stirpes / per capita with representation

  • Distribute proportionally at level 1; any undistributed assets stay in their lane and get distributed proportionally underneath their level 1 sources

• Strict per stirpes

  • Different variant, probably not important….

Intestate distributions—special cases

• Advancement (intestate) / satisfaction (by will):

  • If T gives B a lifetime gift and there is a writing signed by the decedent or recipient showing T intends the gift to be an advancement, then…

    • Value of advancement is added back to the estate before shares are calculated (hotchpot) and then subtracted from recipient’s share

    • Recipient need not return any excess, but also may end up with nothing beyond the advancement

• Adoption

  • Severs parent-child relationship unless adopted child and natural parent lived together at any point in time as parent and child

• Parent and step/foster children

  • Have parent-child relationship only if

    • Relationship began during child’s minority

    • Continued throughout lifetime of parties

    • A legal barrier prevented adoption

• Non-marital children

  • Always inherit from natural mother

• Half-bloods

  • Inherit same as whole bloods

Disclaimer

• Heir or beneficiary can disclaim their interest

• Disclaimer must be in writing and signed, describe disclaimed property, be files within a reasonable time (safe harbor of 9 months)

• Disclaimer estopped if benefits accepted

• Disclaimed property passes as though disclaimant predeceased decedent

“Unworthy” heirs

• If B feloniously or intentionally kills T, property passes as if B predeceased T

• Parent treated as pre-deceasing child if:

  • Parent did not ack child, OR

  • Parental rights terminated and not judicially reestablished, OR

  • Parent intentionally or presumptively abandoned child for 7 consecutive years before child reached majority

• Bs that physically or financially abuse or neglect elder or dependent adult treated as predeceasing

Increases to specific gifts

• Before T’s death

  • Income (rents and profits) goes to general estate; improvements to real property go to devisee

• Increases after T’s death

  • Pass to specific beneficiary, since beneficiary is deemed to own the property upon T’s death

Estate administration

• Personal representative

  • Order of preference = person named in will, surviving spouse, next of kin, creditor

  • Duties: give notice, collect assets, manage assets, pay expenses, distribute property

• Creditors’ claims

  • Unsecured claims must be filed within time specified by statute

  • Waterfall: debts to federal gov, debts to state, administration expenses, secured claims, funeral expenses, last illness expenses, family allowances, wage claims, all other claims