Wills & Trusts

UPC Order of Inheritance

spouse, descendants, parents, parent's descendants, grandparents, grandparent's descendants, deceased spouse's descendants

CA Order of Inheritance

spouse, descendants, parents, parent's descendants, grandparents, grandparent's descendants, descendants of deceased spouse, next of kin, parents of deceased spouse

UPC Surviving Spouse Share - entire estate

no D or P; or all dec’s Ds also SS’s Ds (+ SS has no other Ds)

UPC Surviving Spouse Share - no D, yes P

$300k + 3/4 remaining

UPC Surviving Spouse Share - D + SS has other Ds

$225k + 1/2 remaining

UPC Surviving Spouse Share - D that isn't D of SS

$150k + 1/2 remaining

CA Surviving Spouse Share - entire estate

No D, P, sibs, or sib's D

CA Surviving Spouse Share - 1/2 estate

No D but P or P's D; or

1 D; or D(s) from 1 dead D

CA Surviving Spouse Share - 1/3 estate

> 1 D; or

1 D & D(s) from 1+ dead D; or

D(s) from 2+ dead Ds

Will Formalities

1. writing

2. signature

3. attestation

Attestation - UPC

2 witnesses, sign within reasonable time after witnessing sig or T's acknowledgement

Attestation - CA

2 witnesses, must witness sig or T's acknowledgement at same time

Interested Witnesses - UPC

interested witnesses can attest

Interested Witnesses - CA

triggers rebuttable presumption of undue influence, fraud, or duress

Harmless Error

UPC only; doc treated as being executed with formalities if proponent established by clear & convincing evidence that T intended doc to be will/codicil/revocation

Notarized Wills

1. writing

2. signature

3. notary

(UPC only)

Holographic Will

1. handwriting

2. signature

3. intent

4. date (not required)

Revocation by Writing

subsequent writing executed with formalities

new will that provides complete disposition

presumption of revocation

new will that makes incomplete disposition

presumption of amendment (codicil)

Revocation by Physical Act

physical act that destroys or obliterates will performed by T or by 3P at T's direction in their presence

Will can't be found

CA only; if will last in T's possession, presumption it was destroyed with intent to revoke

Dependent Relative Revocation

if T revoked under mistaken assumption, revocation ineffective if T wouldn't have revoked but for mistaken belief

UPC - new will that wholly revokes prior will is revoked

prior will remains revoked unless it's evident T intended it to take effect

UPC - new will that partly revokes prior will is revoked

revoked part of previous will is revived unless evident that T intended otherwise

CA - new will that wholly or partly revokes prior will is revoked

prior will stays revoked unless clear that T intended it to take effect

Integration

all docs present at time of execution that are intended to be part of will treated as part of will (fact specific inquiry)

Republication by Codicil

will republished on date of execution of valid codicil; republication cures defects

Consequence of Republication

If subsequent will revoked prior will but prior will is republished, prior will revokes subsequent will if inconsistent (or if prior will expressly revokes all previous wills)

Contracts Relating to Wills

if valid will doesn't comply with terms of K, will probated but K beneficiary entitled to remedy for breach

Testator Capacity

general understanding of:

1. Nature & extent of property

2. Natural objects of their bounty [who should be expected to get things]

3. Disposition they're making of their property [who’s getting what]

4. How these elements come together to form an cohesive plan for distribution of property

Insane Delusion

will doesn't stand if it was product of insane delusion

insane = no evidence to support belief

delusion = T won't change belief if corrected

Undue Influence

wrongdoer exerted such influence over donor that it overcame their free will & caused them to make a donative transfer they wouldn't have otherwise made

UPC presumption of undue influence

confidential relationship + suspicious circumstances

If no presumption, how to show undue influence?

either direct evidence of undue influence or inference from circumstances

Duress

wrongdoer threatened to perform or did perform wrongful act that caused donor to make donative transfer they wouldn't have otherwise made

Fraud

wrongdoer knowingly or recklessly made false representation of material fact that was intended to & did cause donor to make donative transfer they wouldn't have otherwise made

If undue influence, fraud, or duress prevented execution of will

2 remedies:

1. constructive trust

2. tortious interference with an expectancy

CA rebuttable presumption of fraud or undue influence

transfer to:

- Person who drafted instrument

- Person who transcribed instrument & was in fiduciary relationship with transferor

- Care custodian of dependent adult

- Care custodian who commenced marriage, cohabitation, or domestic partnership with dependent adult

CA conclusive presumption of fraud or undue influence

- Relative of, cohabitant, or employee of person who drafted instrument; person who transcribed instrument & was in fiduciary relationship with donor; or care custodian of dependent adult

- Partner, shareholder, or employee of law firm in which person who drafted or transcribed instrument has ownership interest

- Exception: if related to or are cohabitant of transferor

Tortious Interference with an Expectancy

1. Existence of an expectancy

2. Intentional interference with the expectancy through tortious conduct

3. Causation

4. Damages

Extrinsic Evidence: Will Unambiguous

No extrinsic evidence; interpret via plain meaning

Extrinsic Evidence: Will Ambigious

Extrinsic evidence admissible to resolve ambiguities

Will Reformation (by court)

Ct may reform terms of governing instrument (even if unambiguous) to conform to testator's intent if clear & convincing evidence of: (1) what testator's intent was & (2) terms of instrument were affected by mistake of law or fact

Failure of Testamentary Provision - CA

Except as antilapse applies, if a transfer fails for any reason, property passes:

1. According to any alternate disposition provided in the transferring instrument

2. If no alternate disposition exists, to residuary beneficiaries

3. If instrument has no residuary clause, or if the failed transfer itself was a residuary gift, property passes to dec's estate (intestacy)

Failure of Testamentary Provision - UPC

Except as antilapse applies, devise that fails for any reason becomes part of the residue

Failure of Testamentary Provision - Residuary Devise

If residue is devised to 2+ persons, share of residuary devise that fails for any reason passes to other residuary devisee

Antilapse

Unless instrument expresses a contrary intent or substitute disposition, devise that fails goes to beneficiary's descendants

When does antilapse apply?

Only to gifts to testator's relatives

Words of Survivorship

UPC - insufficient to avoid triggering antilapse statute

CA - sufficient to avoid triggering anilapse statute

Incorporation by Reference - CA Rule

1.Will refers to writing

2. Writing dated

3. Writing either in handwriting of testator or signed by testator

4. Writing describes items & devisees with reasonable certainty

5. Total value of personal property identified & disposed of in writing < $25k

Incorporation by Reference - UPC Rule

1. Will refers to writing

2. Writing signed by testator

3. Writing describes items & devisees with reasonable certainty