Term
| What is the surviving spouse's share of the SP of the decedent under intestacy? |
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Definition
If no lineal descendants, parents or issue of parents, they get it all.
If decedent is survived by one issue, parent, or issue of parent, they get 1/2 the SP.
If decedent is survived by more than 1 lineal descendant, they get 1/3. |
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Term
| What is the order for intestacy taking if no spouse? |
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Definition
1. Issue
2. Parent/parents
3. Issue of parents
4. Grandparents
5. Issue of grandparents
6. Issue of predeceased spouse/DP |
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Term
| What is a posthumously born child? |
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Definition
| A child conceived before but born after the death of the husband is rebuttably presumed to be the son of the father if born within 300 days of the husband's death. If born 301 days, the presumption reverses. |
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Term
| Can a child inherit from his natural parents and his adoptive parents? |
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Definition
| Yes, unless the stepparent adopted the child and the stepparent is married to a natural parent. |
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Term
| How does equitable adoption work? |
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Definition
Foster parents and stepparents are treated as adoptive parents for purpose of inheritance if:
1. The relationship began during the child's minority
AND
2. It is established by clear and convincing evidence that the stepparent would have adopted the child but for a legal barrier. |
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Term
| Capacity for a will requires |
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Definition
The testator must be:
18 and of sound mind |
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Term
| For an attested will, the witnesses must see... |
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Definition
| The two witnesses must either see the testator sign the document or acknowledge his signature at the same time. They can sign at any time thereafter up until the testator's death. |
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Term
| Do the witnesses need to read a will before they sign it? |
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Definition
| They only need to be aware that the instrument is a will. They must be aware of eachother's presence and what they are doing. |
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Term
| What happens when there is an interested witness? |
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Definition
| A rebuttable presumption arises that the testator exerted undue influence. |
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Term
| What is the doctrine of integration? |
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Definition
| The will consists of all pages that are present at the time of execution and are intended to form the part of the will. |
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Term
| What is required for a valid holographic will? |
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Definition
| The material provisions must be in writing and the will must be signed by the testator. |
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Term
| What effect does divorce or dissolution have on provisions in a will? |
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Definition
| It revokes all will provisions in favor of the former spouse unless it can be proven that the testator intended for the will to survive. |
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Term
| What is dependant relative revocation? |
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Definition
| A testator who revokes a will under a mistaken belief of law or fact and would not have revoked the will but for such belief has not effectively revoked his will, and the old will still stands. |
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Term
| What is a legacy, a devise, and a bequest? |
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Definition
bequest or legacy-gift of personal property by will
devise-gift of real property |
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Term
| What are the requirements for incorporation by reference? |
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Definition
i) Existed at the time the will was executed;
ii) Is intended to be incorporated; and
iii) Is described in the will with sufficient certainty as to permit its identification. |
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Term
| What is an act of independent significance? |
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Definition
| A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator's death, if the act or event has some significance apart from the will. |
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Term
| Who do CA anti-lapse statutes apply to? |
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Definition
| Testator's blood relative or his or her former spouse. |
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Term
| What is the order of abatement? |
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Definition
1. Intestate
2. Residuary
3. General bequests to people other than relatives
4. General bequests to relatives
5. Specific bequests to people other than relatives
6. Specific bequests to relatives |
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Term
| What is ademption by extinction? |
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Definition
When a specific bequest is missing or destroyed (“extinct”), the beneficiary takes nothing unless the testator's intent says differently.
If a gift is adeemed, the beneficiary is entitled to:
i) Whatever is left of the specifically devised property;
ii) The balance of the purchase price owing from the purchaser of the property;
iii) Any amount of condemnation award for the taking of the property, to the extent unpaid upon death; or
iv) Property acquired from the foreclosure of a security interest on a specifically devised note. |
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Term
| What is ademption by satisfaction |
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Definition
| When the testator provides for the beneficiary outside the will and intends it to be in satisfaction of their gift. Generally must be evidenced by a writing. |
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Term
| What is an omitted spouse? |
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Definition
When a will is executed prior to marriage and the testator does not change his will after, the wife will take 1/2 CP and intestate share of SP unless:
i) The omission of the spouse or DP was intentional, and that intent is apparent in the will;
ii) The spouse or DP was given property outside of the will in lieu of a disposition in the testator’s will; or
iii) The spouse or DP is party to a valid agreement waiving the right to share in the estate (e.g., a prenuptial agreement). |
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Term
| When is a gift to a child an advancement of an inheritance? |
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Definition
When
i) The decedent declared in a contemporaneous writing (or the heir acknowledged in a writing) that the gift was an advancement; or
ii) The decedent’s contemporaneous writing or the heir’s written acknowledgement otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent’s intestate estate. |
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Term
| An omitted child takes intestacy share unless: |
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Definition
The omitted child statute does not apply if:
i) It appears that the omission of the child was intentional;
ii) The testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the omitted child; or
iii) The testator provided for the child outside of the will and intended this to be in lieu of a provision in the will. |
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Term
| Homicide bars to succession: |
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Definition
| Preponderance that killing was intentional and felonious |
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Term
| What are the requirements for mental capacity to make a will? |
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Definition
The testator must:
a) Understand the nature of the act;
b) Understand and recollect the nature and character of his property; or
c) Remember and understand his relationship to living descendents, spouse, parents, and those affected by his will; or
OR
ii) Suffered from a mental disorder involving delusions or hallucinations, which resulted in his devising property in a way that he would not have done but for the delusions or hallucinations. |
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Term
| What is an insane delusion? |
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Definition
| An insane delusion is a belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. |
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Term
| What is undue influence for wills? |
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Definition
The burden of proof rests on the contestant to show
1. The existence and exertion of influence
2. The effect was to overpower the mind and will of the testator. |
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Term
| What are the undue influence factors? |
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Definition
i) Susceptibility (the testator was susceptible to being influenced);
ii) Motive or predisposition (the influencer had reason to benefit);
iii) Opportunity (the influencer had the opportunity to influence); and
iv) Causation (the influencer caused an unnatural result). |
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Term
| How do you prove fraud in a wills case? |
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Definition
The misrepresentation must be made by the beneficiary with both:
i) The intent to deceive the testator; and
ii) The purpose of influencing the testamentary disposition. |
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