Term
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Definition
Testator must be at least 18 years of age.
Testator must be able to understand the extent of her property.
Testator must know the natural objects of her bounty.
Testator must know the nature of her act. |
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Term
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Definition
Testator had a FALSE BELIEF
That false belief was the PRODUCT OF SICK MIND
There is NO EVID TO SUPPORT the belief, not even a scintilla of evidence.
Delusion must have AFFECTED WILL |
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Term
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Definition
| The residuary gift is that part of the estate not otherwise expressly disposed of in the will. |
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Term
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Definition
There must be a REPRESENTATION;
Of MATERIAL FACTS;
KNOWN TO BE FALSE by the wrongdoer;
For the purpose of INDUCING action or inaction; and
IN FACT INDUCES the action or inaction desired. |
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Term
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Definition
EXECUTION (entire will invalid)
INDUCEMENT (part of will affected invalid)
PREVENTING TESTATOR FROM REVOKING (entire will invalid) |
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Term
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Definition
Testator 's free agency is subjugated
- Prima Facie (part of will affected invalid)
- Case Law Presumption (part of will affected invalid)
- Stat Presumption (Gift lapses) |
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Term
| Prima Facie (Undue Influence) |
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Definition
(SOAN)
- Susceptibility
- Opportunity
- Active Participation
- Unnatural Result |
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Term
| Case Law Presumption (Undue Influence) |
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Definition
- Confidential rel
- Active Participation
- Unnatural result |
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Term
| Stat Presumption (Undue Influence) |
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Definition
Statutorily presumes that a provision of an instrument making a donative transfer to the following persons is the product of undue influence:
- PERSON WHO DRAFTED INSTRUMENT
- PERSON IN A FIDUCIARY REL with the transferor
- A “CARE CUSTODIAN” of a “dependent adult,” if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period; or
- Person who is a spouse, domestic partner, or blood relative related within the “third degree” of any person described above
- A person who is a cohabitant or employee above
- A partner, shareholder, or employer of a law firm in which the drafter has an ownership interest. |
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Term
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Definition
| Person who provides health or social services to a dependent adult. |
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Term
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Definition
- Content
- Execution
- Inducement
- Description
- Mistake in the Validity of a Subsequent Testamentary Instrument (DDR)
- Mistake Regarding Living Children (Pretermission) |
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Term
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Definition
Wrong beneficiary is named or the wrong gift is made
- OMISSION - No remedy; ct doesn't rewrite
- ADDITION - Court may excise |
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Term
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Definition
The testator signs the wrong document.
- Signs NOT KNOWING IT IS TESTY DOC - Not probated because no intent
- Signs SPOUSES' WILL IN RECIP OR MUTUAL WILL - Cts may reform for equity and if clear evid of H&W executing such a will |
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Term
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Definition
A particular gift is made or not made on the basis of testator’s erroneous beliefs.
- No relief unless mistake clear on face of will |
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Term
| Mistake in Description (Ambiguity) |
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Definition
No one or nothing fits the description or two OR more persons or things fits the description
- LATENT - intro parol evid to est ambiguity, then introduce a second time to determine intent
- PATENT - C/L no remedy; Modern allow parol evid |
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Term
| Mistake in the Validity of a Subsequent Testamentary Instrument (DDR) |
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Definition
- If TESTATOR REVOKES WILL, or a portion thereof,
- in the MISTAKEN BELIEF that a SUBSTANTIALLY IDENTICAL will or codicil effectuates her intent,
- then, by operation of law,
- the REVOCATION of first will deemed CONDITIONAL, DEPENDENT AND RELATIVE to the second effectuating testator’s intent.
- If the second does not effectuate testator’s intent, FIRST WILL NEVER REVOKED |
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Term
| Mistake Regarding Living Children (Pretermission) |
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Definition
An accidental omission
A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.
Takes an INTESTATE SHARE |
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Term
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Definition
- INTENT - of T for papers to be part of will
- PRESENCE - papers must have been actually or physically present at time of execution
Prove by PHYSICAL or LOGICAL connection |
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Term
| Incorporation by reference |
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Definition
Non-integrated writing is given testamentary effect and becomes part of the will.
- DOCUMENT IN WRITING
- EXISTENCE when will executed
- Document CLEARLY ID in the will
- T INTENDED to incorp into will |
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Term
| Facts of Independent Significance |
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Definition
Facts of independent significance allow us to fill in the blanks to T's will with parol evidence that is trustworthy
Ask: Even w/o will, would this fact have existed?
Fact can be future or past fact or act |
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Term
| Writing disposing of tangible personal ppty |
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Definition
- Writing must be REFERRED TO IN WILL, DATED, and SIGNED or HANDWIRTTEN
- DESCRIBE the items and recipients
- Executed BEFORE or AFTER
- DIRECTS DISPOSITION of tangible personal ppty |
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Term
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Definition
Part or all of testator’s estate is devised to the trustee of the inter-vivos trust, to be administered pursuant to the terms of that trust.
Validated by
- Incorporation by REFERENCE - reference to intervivos trust
- INDEPENDENT SIGNIFICANCE - trust instrument
- Uniform Testamentary Additions to Trusts Act (UTATA)- valid by stat if trust in existence at time of will |
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Term
| Elements of Attested Will |
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Definition
- WRITING
- SIGNED by testator (or 3P in T's presence and direction)
- In the PRESENCE of TWO witnesses PRESENT AT THE SAME TIME or T ACKNOWLEDGES SIGNATURE or WILL in the presence of two witnesses at the same time
- WITNESSES SIGN during T's lifetime
- Witnesses UNDERSTAND doc is T's will |
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Term
| CA Harmless Error for Attested Will Formalities |
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Definition
| If the will does not satisfy WITNESS FORMALITIES, the will can STILL BE ADMITTED into probate if the proponent of the will establishes by "CLEAR AND CONVINCING EVIDENCE" that at the time the testator signed the will, he or she INTENDED the will to constitute his or her will |
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Term
| CA Substantial Compliance Doctrine |
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Definition
- Do not have to sign in the presence of EACH OTHER or the presence of TESTATOR.
- NO PUBLICATION (“this is my will”)
- Neither testator nor the witnesses NEED TO SIGN AT END of the will:
- OK for WITNESSES to SIGN FIRST (“If there is no issue of fraud or mistake, the will should be deemed valid under California’s ‘substantial compliance’ doctrine)
- If proponent establishes by CLEAR AND CONVINCING EVID that T intended the will to be his or her will, the doc is will and probate! |
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Term
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Definition
A witness who is beneficiary under the will
Presumption that the witness-bene acquired by wrongdoing; if CANNOT REBUT then take INTESTATE SHARE |
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Term
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Definition
| A conditional will is one whose validity is made conditional by its own terms. probated only if the condition is satisfied |
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Term
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Definition
- SIGNED by T
- MATERIAL PROVISIONS must be in T's OWN HANDWRITING (gifts and bene names)
- Dates not req - but could be problem w/ inconsistency and capacity
**Undated will INVALID to extent of inconsistency
**INVALID if person COULD HAVE lacked capacity during when could have been executed |
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Term
| Testamentary Intent (Holographic Will) |
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Definition
Need not be on the face of the will and in testator’s handwriting. (OK to use commercially printed forms)
- Extrinsic evid admissible to ascertain intent if unclear (i.e. series of letters or just a list) |
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Term
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Definition
The out-of-state will is admitted into probate in CA if the will complies with the formalities of execution of:
- CA law
- The law of the place where the will was executed
- The law of the place of T's domicile at the time of execution |
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Term
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Definition
A testamentary instrument executed in compliance with the CA probate code, which modifies,amends, or revokes a will
Must follow FORMALITIES |
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Term
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Definition
A codicil republishes a will. This means that a codicil causes the will to speak from the date that the codicil is executed on
- Pay attn to issues with pour-over trust, pretermission |
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Term
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Definition
Revocation of codicil, there is a rebuttable presumption that testator INTENDED ONLY to revoke his CODICIL.
Revocation of will, rebuttable presumption that testator INTENDED to revoke WILL and CODICIL |
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Term
| Revocation by Physical Act |
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Definition
- Will must be BURN, TORN, CANCELLED, DESTROYED, OR OBLITERATED
**cancellation - line out or cross out
**obliteration - erasing
- INTENT to revoke
- Done by T or someone in T's presence and at direction |
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Term
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Definition
Writing btw lines
- If orig gift LESS THAN interlineation, then give orig gift - DDR
- If orig gift GREATER THAN interlineation, then no gift - NO DDR |
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Term
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Definition
Crossing out or lining through
CANNOT increase gift to a co-bene by cancellation |
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Term
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Definition
| If T or someone in testator’s presence and at his direction, revokes by physical act one of the duplicate originals, then the other duplicate original also is revoked, as a mater of law. |
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Term
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Definition
| If a will is FOUND in a mutilated condition at testator’s death, and when LAST SEEN IN T'S POSSESSION, there is a REBUTTABLE PRESUMPTION that T mutilated the will with the INTENT TO REVOKE the will |
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Term
| Revocation by Subsequent Instrument |
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Definition
EXPRESS - stating so in will
IMPLIED - totally disposes estate w/o giving to pty |
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Term
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Definition
ORAL - T's oral stmt
SUBSEQUENT INSTRUMENT - appears from terms of codicil that T wanted first will revived |
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Term
| Omitted or Pretermitted Child |
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Definition
A child born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument
Child rec'd INTESTATE SHARE and anything held in intervivos trust
EXCEPTIONS
- INTENTIONAL and appears ON FACE
- T had MORE THAN ONE child, and made SUBSTANTIAL TRANSFER of estate to PARENT of omitted child
- OUTSIDE TRANSFER |
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Term
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Definition
A surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for in any testamentary instrument
Spouse rec'd STATUTORY SHARE (see CP) and anything held in intervivos trust
EXCEPTIONS
- INTENTIONAL and appears ON FACE
- OUTSIDE TRANSFER
- WAIVER |
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Term
| Omitted Spouse/Partner Waiver |
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Definition
A voluntary relinquishment of a known right whether signed before or during marriage
- IN WRITING, SIGNED by waving spouse before or during marriage; and
- FULL DISCL by decedent of decedent’s finances; and
- INDEP COUNSEL by the waiving spouse |
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Term
| Final Dissolution of Marriage |
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Definition
REVOCATION of the devise to the spouse or domestic partner if there is an annulment or final dissolution of marriage, or termination of domestic partnership.
REINSTATED if the will is unchanged and the testator remarries the former spouse. |
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Term
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Definition
- SPECIFIC Devise
- GENERAL Devise
- DEMONSTRATIVE Devise
- RESIDUARY Devise |
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Term
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Definition
- gift of a PARTICULAR item
- Something UNIQUE about it
- T INTENDED B take this PARTICULAR THING, and nothing else |
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Term
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Definition
- A general devise is payable out of the general assets of the estate
- Nothing unique or special about this gift |
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Term
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Definition
A hybrid between a general and a specific gift
Gift from a particular fund, but if that is not enough, the executor can resort to general property. |
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Term
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Definition
| All other property not expressly disposed of in the will |
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Term
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Definition
Ademption by extinction is when a specific gift fails because testator DID NOT OWN at death and INTENDED the gift TO FAIL
Does not apply
- SECURITIES change form
- Conservator sells off assets
- Eminent domain, casualty award |
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Term
| Ademption by Satisfaction |
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Definition
Testator gives beneficiary an intervivos down payment on a devise
Established by
- WILL provides deduction for intervivos gift
- T declares in CONTEMPORANEOUS WRITING that gift is a satisfaction
- Bene ACKNOWLEDGES in writing
- SAME PPTY that is subject of SPECIFIC GIFT |
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Term
| Beneficiary dies before Testator (Ademption by Satisfaction) |
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Definition
| The issue of the predeceased beneficiary is treated as if he or she had received the satisfaction, unless testator’s will or contemporaneous writing states otherwise. |
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Term
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Definition
It is an intervivos downpayment made by an intestate to an heir apparent
- T declares in CONTEMPORANEOUS WRITING that gift is a advancement
- Bene ACKNOWLEDGES in writing |
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Term
| Beneficiary dies before Testator (Advancement) |
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Definition
| The issue of the heir-apparent is not treated as having received an advancement, unless the advancement provides otherwise. |
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Term
| Requirements Contract Not to Revoke or Make Will |
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Definition
- Will states MATERIAL PROVISIONS of the K
- EXPRESS REF in will to a K
- WRITING signed by DECEDENT evid K
- C/C Evid of Agmt btw decedent and promisee
- C/C Evid of Agmt decedent and 3P |
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Term
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Definition
The will of two or more people on one document
The provisions DO NOT have to be reciprocal.
When the first person dies, the will is probated. When the second person dies, the will is probated again. |
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Term
| Mutual Wills (also known as Reciprocal Wills) |
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Definition
The separate wills of two or more people which are reciprocal
Example: Husband and Wife execute their own separate wills. Husband leaves everything to Wife. Wife leaves everything to Husband |
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Term
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Definition
| Reciprocal provisions on one instrument. |
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Term
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Definition
| The execution of a joint will, or mutual will, or a joint and mutual will does not create a presumption of a contract to not revoke or make a will. |
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Term
| Unworthy Heirs or Beneficiaries: Killers |
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Definition
Those feloniously and intentionally kill the decedent CANNOT take by WILL or INTESTACY
Proof
- CONVICTION is conclusive
- Others probate ct decides by preponderance
Predecease and anti-lapse DOES NOT apply |
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Term
| Per Capita/Representation (CA 240) |
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Definition
- Issue of the SAME DEGREE take “per capita,” or EQUALLY and in their own right.
- Issue of more REMOTE DEGREE take “PER CAPITA with REPRESENTATION.”
**at the FIRST LEVEL someone is living and give SHARES TO ALL LIVING PEOPLE at that generation, AND to deceased members of that generation WHO LEAVE ISSUE |
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Term
| Per Stirpes or Right of Representation (CA 246) |
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Definition
| That means you make the DISTRIBUTION at the FIRST GENERATION or first level, even if everyone is dead, SO LONG AS THEY LEFT ISSUE. The ISSUE STEP INTO SHOES of their predeceased ancestor. |
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Term
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Definition
| An adopted child is always treated as a natural child of the adopting parent |
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Term
| Severing relations w/ natural parent (Adopted Children) |
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Definition
| The relationship to the natural parent is NOT SEVERED if the adoption is by the SPOUSE OR DP of the natural parent, or AFTER DEATH of EITHER NATURAL PARENT |
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Term
| Fosters treated as adopted |
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Definition
- The BEGIN in child's MINORITY
- CONTINUED throughout pty's LIFETIME
- Established by clear and convincing evidence that the stepparent or foster parent would have adopted BUT FOR LEGAL BARRIER |
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Term
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Definition
Marital status of the parents is irrelevant
Domestic partnership, a parent-child relationship is established by one of several presumptions
- BORN DURING PARTNERSHIP
- If born after partnership started, nonbirthing partner NAMED ON BIRTH CERTIFICATE or VOL PROMISE to pay child support |
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Term
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Definition
Relatives who have only 1 common parent, and not 2.
Relatives of the half blood inherit the same as the whole blood. |
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Term
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Definition
A posthumous child is a child conceived during the lifetime of the intestate or testator, but born after the death of the intestate or testator.
Heirs of the intestate and beneficiaries of testator’s will. |
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Term
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Definition
If the BENE DOES NOT SURVIVE the testator, beneficiary’s gift LAPSES, or FAILS.
The gift falls into the RESIDUE, it goes to other co-residuary devisees.
Otherwise, the gift goes by INTESTACY. |
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Term
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Definition
Devisee who predeceased the testator was “KINDRED” of the testator, or KINDRED OF SURVIVING, DECEASED or FORMER SPOUSE of the testator, and this predeceased devisee LEAVES ISSUE.
In such case, the ISSUE of that predeceased DEVISEE will STEP INTO SHOES of that predeceased devisee.
KINDRED = blood relative; cannot be spouse or domestic partner |
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Term
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Definition
Uniform Simultaneous Death Act - CA Adopted
If the devolution of property is DEPENDENT on one person SURVIVING OTHER, and it CANNOT BE DETERMINED BY CLEAR AND CONVINCING EVID who survived whom, then it is deemed the one person DID NOT SURVIVE the other. |
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Term
| 120-hour Rule (Simultaneous Death) |
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Definition
The heir must survive the intestate by 120 hours. If it cannot be determined by C/C EVID that the heir has survived the intestate by 120 hours, it is deemed that the heir DID NOT SURVIVE the INTESTATE.
NOT APPLY if ppty would ESCHEAT |
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Term
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Definition
Property acquired after the will was executed.
A will passes all ppty the testator owned at death, including after- acquired property. |
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Term
| Increase DURING Testator’s Lifetime |
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Definition
| Stock dividends or splits paid during testator’s lifetime go to the beneficiary if the stock is owned by testator at testator’s death. |
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Term
| Increase AFTER Testator’s Death and During Probate |
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Definition
Regarding SPECIFIC devises, all increase goes to the beneficiary.
GENERAL devisees do not receive any increase.
- EXCEPT interest on general pecuniary gifts |
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Term
| Abatement for omitted child or spouse |
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Definition
The process by which certain gifts are decreased to pay for omitted CHILD OR SPOUSE to pay stat share
Order
- Ppty NOT PASSING by will or revocable intervivos trust
- All beneficiaries
NO DISTINCTION btw specific, general or residuary gifts
- EXCEPTION - Ct can exempt the specific gift if abating the specific gift would defeat the obvious intention of the testator. |
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Term
| Abatement for general debts |
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Definition
- intestate property;
- residuary gifts;
- general gifts to non-relatives;
- general gifts to relatives;
- specific gifts to non-relatives;
- specific gifts to relatives. To the extent they can be satisfied from the designated fund, demonstrative gifts are treated as specific gifts. |
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Term
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Definition
No automatic exoneration
Devisee takes the specific gift subject to the encumbrance, unless the testator’s will states that the SPECIFIC GIFT is TO BE EXONERATED. |
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Term
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Definition
Gift made in contemplation of imminent death (PERSONAL PPTY ONLY)
Donor must make a delivery of the property to donee.
- Actual
- Symbolic
- Constructive |
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