WILLS

I. WILLS
California Wills Differences:
(1)
(2)
(3)




A. Validity
1. In order for a testator to have proper testamentary capacity:

a. Age requirements:


b. Sound mind:


(1) the person does not have sufficient mental capacity to be able to:
(a)


(b)


(c) remember and understand his relations to living descendants, spouse, and parents, and to others
whose interests are affected by the will.
(2) Insane Delusion: the person suffers from a mental disorder with symptoms including delusions or
hallucinations resulting in the person devising his property in a way he would not otherwise do.
A testator is presumed to be of sound mind. But this can be challenged through a will contest by any person who has
an interest in the distribution of the estate. If such a person brings in evidence of lack of capacity on behalf of the
testator, then the proponent of the will must show that the testator possessed testamentary capacity by the prepon-
derance of the evidence.

EXAMPLE:
Testator leaves a will that says I leave half of my estate to my brother and the other half to Batman to be
used to redecorate the Batcave. If the testator is under an insane delusion that Batman is a real person,
then that insane delusion is affecting the disposition of the will. The will is still valid but the effected
disposition will be cut out. The brother will still get half of the estate. If theres no residuary beneficiary, then
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the property will fall to intestacy.
EXAMPLE:
Testator makes out a will leaving her entire estate to her sister stating that she is writing this will on
recyclable paper because Batman told her so. Even if testator is suffering from an insane delusion, the
insane delusion has no effect on the disposition under the will, and is thus ignored. The insane delusion
does not prevent the testator from being of sound mind.
2. Intent
a.


EXAMPLE:
If a testator sends a letter to his sister, and says he intends to make up a will next week and details how he
wishes to have his property distributed. If testator dies before making that will, can the letter be admitted into
probate? Even though that document might qualify as a holographic will under California law, at the time the
testator wrote the letter, he did not intend that letter to be a will. The letter cannot be deemed to be the testators
will because the testator lacked testamentary intent.
b. Three areas that prevent testamentary intent:
(1) Undue influence:




(a)


(b) Presence of undue influence is solely a question of fact, based on:
1)

2)

3)

(2) Fraud
(a) Two types:
1)

a)

b)

EXAMPLE:
Radar OReilly presents a stack of papers for Colonel Henry Blake to sign, stating they are all
important documents. Radar inserted a piece of paper that states I, Henry Blake, leave all my
property to Radar OReilly. Radar used fraud to have Colonel Blake sign the document. Will is
invalid.
2)

a)


b)


EXAMPLE:
A child fraudulently claims to be testators illegitimate son. As a result, the testator leaves half
of the estate to the child. Would the testator have left half of the estate to the child, if the
testator knew the true facts? If no, then invalidate the gift. If yes, then it does not constitute
fraud sufficient to strike that provision of the will.
(3) Mistake
(a) Two types:
1)

a)

b)
2)

a)


b)


c) In some instances, CA courts will permit extrinsic evidence. If there is ambiguity or evidence
of undue influence, fraud or duress, courts will admit extrinsic evidence to show true intent.

A sham will is a will made by the testator as a sham or a joke not intending that it be a valid testamentary instrument.
If it can be that shown by the challenger through clear and convincing evidence that the document was not intended
to be a will, but created as a sham or a joke, then the will be invalid. Testamentary intent was not present.
A conditional will is when there is a condition precedent to the will taking effect. In such a situation, if the condition
does not occur, then the will is invalid. However, the condition must be clearly spelled out in the document.
HYPOTHETICAL
From 2004 on, Roger repeatedly threatened his sick brother George that he would pull the plug on him
if he didnt leave him money in his will. George died in 2009 leaving Roger a large bequest. Georges
son Barry moved to have the will set aside for undue influence, but notes found in Georges effects
showed that George had always intended to leave most of his estate to Roger, but simply had never
wanted to tell Roger that. Can Barry succeed?
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HYPOTHETICAL
T, a Giants fan, made a will that left his estate to Al and Sara. Sara fraudulently persuaded T that Al was
an avid Dodgers fan. This was a lie; Al was a diehard Giants devotee. As a result, T canceled Als gift.
How will the court divide Ts estate?








3. Formalities
a. Witnessed will (i.e., attested or formal will)
(1)


(a)


(b)


(c)
(2) Signed by witnesses
(a)


(b)


CA Probate Code requires that the testator sign, or acknowledge signing, in the presence of two (2) witnesses.
(3) Interested Witness: An interested witness is a witness to the will and a beneficiary under the will. When the
interested witness is one of the qualified witnesses, the will is still valid, but the gift to the interested witness
is void to the extent that it exceeds what the interested witness would have received had there been no will.
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It does not matter where on the will the testator signs. The order of signatures does not matter. The witnesses can
sign first provided the testator signs immediately thereafter and its all part of one continuous act.
4. Substantial Compliance/Harmless Error: If a will was not executed in compliance with all of the formalities, the will is
treated as if it was executed in compliance 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 testators will.
a. Holographic will
(1) A holographic will is:


(2) California recognizes a holographic will if material provisions are in the testators handwriting.
(a)


(b) If any material provisions are not in the testator's handwriting,


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






EXAMPLE:
After testators death, an envelope is found in the testators safe deposit. On the envelope, the testator
wrote: I, testator, being of sound mind, want my property to pass according to the document contained in
this envelope, and then signed the envelope. Inside the envelope, is a typed document detailing how the
testator wants the property to be distributed. If treated as integration, then it fails as a holographic will. If
treated as incorporation by reference, such the note on the envelope constitutes a valid will, and the will
incorporated by reference the document inside the envelope, then it is a valid holographic will.
5. Contents of the will
(a) Facts of independent significance: A will may dispose of property by reference to acts and events that






EXAMPLE:
Testator makes a will that says he wants his property to pass in equal shares to the employees of my
company at my death. This provision is valid even if the employees change between the date of
execution and the date the will is admitted to probate.
(b) Ambiguity


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HYPOTHETICAL
T sends his girlfriend a handwritten, signed letter professing his love for her and promising to leave her
his entire estate. However, T dies before making a will. Does this letter constitute a will?








HYPOTHETICAL
Ts will leaves $10,000 to her friend and divides the residue equally between her brother and her niece.
The friend and brother served as the only witnesses to the will, which was the only one ever executed by T.
T was survived by the friend, her brother, her niece, and her mother. How will Ts estate be distributed?








6. Special Problems
a. Codicils:


(1)




EXAMPLE:
There can be a holographic codicil to a witnessed will.
b. Contracts to make wills
(1)






EXAMPLE:
A has three children from a previous marriage. A, who is penniless, marries B, who is very wealthy. A and B
have one more child. A and B enter into a contract that the child of their marriage should get half of their
property, and the other half should be split among the As children from the previous marriage. A and B
execute wills in line with the contract. After B dies, A wants to change her will so that all her children get
equal shares of her estate. If the existence of the contractual agreement can be proven because it is stated
in the will along with the contractual provisions, then the contract will be honored. However, it will be
honored as follows: the changed will will be admitted to probate, but the beneficiary who was negatively
affected, can sue the estate for damages or for specific performance.
c. Effect of marital dissolution
(1) General Rule:




(2) Exception:




d. Wills Executed Outside of CA:






B. Revocation and Revival
1. Revocation
a. By instrument:



EXAMPLE:
I hereby revoke my previous will. or I hereby revoke all prior wills.
EXAMPLE:
In 2005, testator executes will number one that leaves all his property to A, B and C. In 2010, testator executes a
second will that leaves all his property to D, E and F. Will number two does not specifically mention will number
one, but makes a new scheme of disposition, thus impliedly revokes the earlier will.
b. By physical act
(1)










(a) Canceling:


(b) Partial Revocation:


c. Copies of a will:


(1) If the decedent executes a will in duplicate, destruction of either copy by the testator or by another person in
the testators presence and by the testators direction with the intent and for the purpose of revoking it is
sufficient to revoke the will.
(2)




(3) Lost Wills:









Presumption is rebuttable through the introduction of extrinsic evidence.
2. Revival
a. A California statute provides that if a second will that revoked an earlier will is itself thereafter revoked, the first
will remains revoked unless it is evident from the circumstances of the revocation of the second will or from the
testators contemporary or subsequent declarations that the testator intended the first will to take effect as
executed.

EXAMPLE:
Testator executes will one. Two years later, testator writes, VOID, across the entire face of will one, thereby
revoking will number one by physical act. Two years after that, testator executes a document titled, Codicil to
Will One, mentioning that in addition to will one, he also wants C to share in his estate. This would be a revival
by republication.
b. California follows the Uniform Probate Code and allows liberal admission of extrinsic evidence to rebut the anti-
revival presumption.
c. Dependent Relative Revocation:






EXAMPLE:
Testator executes valid Will #1. Five years later, testator executes Will #2, which is typed; however, Will #2 has
only one witness, not the required two. Operating under the mistaken belief that Will #2 is valid, Testator tears up
Will #1 with the intent to revoke it. Applying dependent relative revocation, the revocation of Will #1 would be
canceled, and Will #1 could be probated.

HYPOTHETICAL
Ts attested will leaves Cynthia $10,000. T becomes disenchanted with Cynthia and instructs her friend
Frances, in Ts presence, to strike out the final zero (0), seeking to reduce the bequest to $1,000. Is Ts
reduction of Cynthias gift valid?








BAR EXAM APPLICATION
Question 1
Applicants were asked to consider what interests several people had in a decedents estate, which required analysis of the
validity of Teds will. The will was entirely in Teds handwriting, except for the signature of a witness at the bottom, and was
also signed by Ted.
What interests, if any, do Deb, Ann, Beth and Carl have in Teds estate?
Applicants must address the required will formalities, and whether, if the will fails to meet the requirements for due execution,
the will may be admitted to probate as a holographic will.
Adapted from the July 2001 California Bar Exam

BAR EXAM APPLICATION
Question 2
Applicants were asked to determine the rights of several people to the estate of Theresa, who died leaving a valid will that
she attempted to amend on two separate occasions, once with a typed note she dated and signed, and later with a
handwritten codicil that was properly signed and witnessed and that attempted to incorporate the previous note.
What rights, if any, do Henry, Craig, Molly, Sis, and Larry have to Theresas half of the community property?
Applicants must analyze the rules pertaining to the validity of a will, including those concerning a holographic will and
incorporation by reference.
Adapted from the July 2002 California Bar Exam
3. Incorporation by Reference
a. Most states allow a testator to incorporate by reference a separate document into a will when certain conditions
are met.
(1) The separate document need not meet the execution requirements for a will.
b. Incorporation could be used to validate an improperly executed will by properly executing a short document
incorporating the invalid will.
c. California statute: provides merely that [a] writing in existence when a will is executed may be incorporated by
reference if the language of the will manifests this intent and describes the writing sufficiently to permit its
identification [Prob. Code 6130].
d. NOTE: CA statute also allows the will to refer to a separate document disposing of personalty even though the
document is not yet in existence at the time of execution if:
(1) An unrevoked will refers to the writing.
(2) The writing is dated and is either in the handwriting of, or signed by, the testator.
(3) The writing describes the items and the recipients of the property with reasonable certainty.
C. Distribution
1. Testamentary dispositions
a. Specific devise:

b. Demonstrative devise:


EXAMPLE:
Testator gives $100,000 to A from the sale of his house.
c. General devise:
:
d. Residuary devise:



e. Intestate devise:

2. Changes to property
a. Ademption (by extinction): applies to a specific devise only
(1)




(2) Partial ademption: If the testator transferred only a portion of the property devised.




(3) The ademption may occur by an intentional act on the part of the testator (e.g. a sale or gift) or by


(4)




e.g., If the testator specifically devised Blackacre to X, and then exchanged Blackacre for Whiteacre, the
devise of Blackacre would be adeemed by extinction).
b. Satisfaction and Advancement
(1) Satisfaction:






(a) California law provides that a gift will be treated as a satisfaction of a testamentary gift to the recipient
in whole or in part only if one of the following conditions is met:
1)


2)



3) The transferee acknowledges in writing that the gift is in satisfaction of the testamentary gift.
(2) Advancement:






(a)



3. Changes to testators debts & claims
a. Abatement: Gifts are reduced under a will to satisfy the debts and claims of an estate.
Specific order to how gifts are to be abated:
(1)


(2)


(3)


(4)


(5)



CA law says within each bequest category, gifts abate on a pro-rata basis; there is no special protection for gifts to
a surviving spouse.
The will can change the order of abatement.
b. Exoneration

:
(1) Common law:




(2) California law:








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4. Changes to people
a. Lapse:
If a beneficiary predeceases a testator,

b. Simultaneous Death:
California statutes provide that if It cannot be established by clear and convincing evidence that one of the
persons survived the other,



c. Slayer Statute:



d. Anti-lapse Statute:
California anti-lapse statute states that unless a different interpretation is made or required by the will,




(1) The California anti-lapse statute applies only to save a gift to a person who is kindred of the decedent or of
the decedents surviving, deceased, or former spouse.


(2)





CA holds that the beneficiary has to survive the testator by 120 hours to be able to receive under the will.
e. Disclaimer:


(1) In order to be valid a disclaimer must be
(a)

(b)

(c)

(2) A beneficiary who disclaims a gift is treated as if he or she predeceased the testator.
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HYPOTHETICAL
Tom devised my RV to my cousin, Charlie, if Charlie survives me. Tom devised the residue of his
estate to Rich. If Charlie dies before Tom, what is the disposition of the RV?








D. Restrictions on Testamentary Transfers
1. Spouse
a.



2. Omitted child: a child of the testator, either a natural child or an adopted child, who is not mentioned in the will.
a. General rule: The omitted child will receive a share in the decedent's estate equal to




b. Three exceptions when an omitted child cannot claim his or her intestate share:
(1) The decedent's failure to provide for the child in the will or other testamentary instruments was




(2)




(3) The decedent provided for the child by transfer outside of the estate and the intention that the transfer be in
lieu of a provision in the will is shown by




3. Who counts as a child:


4. Omitted Spouse Statute
a. If the decedents will fails to provide for the decedents surviving spouse who married the decedent after the
execution of all of the decedents testamentary instruments, the omitted spouse receives the following share of
the estate:
(1)
(2)
(3) A share of the separate property of the decedent equal to


b. The omitted spouses share is taken: first from the decedents estate that was not disposed of by will or trust, if any,
and then from the shares of all beneficiaries under decedents testamentary instrument(s) proportionately, as far as
necessary to satisfy the omitted spouses share.
c. The spouse does not receive such share if:
(1)

(2) the decedent provided for the spouse by transfer outside of the estate and the intention that the transfer be in
lieu of a provision in the will is shown by

(3)



BAR EXAM APPLICATION
Question 3
Applicants were asked to determine what claim, if any, an omitted child had upon his fathers estate. Teds will, executed in
1999, made no mention of his illegitimate son Sam, born in 1997. Ted was made aware of Sams existence in 1998 but had
disclaimed paternity. After Teds death, DNA tests showed that Ted was, in fact, Sams father.
What interest, if any, does Sam have in Teds estate?
Applicants must consider the effect of Teds denial of paternity on Sams rights, and whether Sam may claim under the
omitted child statute.
Adapted from the July 2001 California Bar Exam
d. RECAP
(1) Validity of Wills:






(2) Revocation and Revival:






(3) Distribution:






(4) Restrictions on Testamentary Transfers:






E. Intestacy: How property passes where there is no will or testamentary distribution scheme.
1. Decedent (D) dies intestate, survived by Registered Domestic Partner (RDP). What is domestic partners share of
Decedents separate property (SP)?
REMEMBER: Decedents of community property (CP) and quasi-community property passes to RDP, RDP has
100% of CP, we are now looking at SP.
a. If no one else survives D, other than RDP:

D RDP

b. If 1 child, or issue of 1 child survives:

D
RDP
CB



c. If no child but parent, or issue of parent (sibling), survives:

D
RDP
M1 M1



d. If more than 1 child:

H
C2 C1 C3 C4
D RDP



2. If RDP does not survive D:

H
C2 C1 C3 C4
D RDP
GC1 GC2
GGC1
GC3
GGC2



a. If all children living:



b. If C4 is not living:



c. If C4 and GC3 are not living:




3. If RDP doesnt survive and no children (or issue of children) survive:




M1 M2
children N1 N2
D
RDP
s b



a. If M1 survives:

b. If both M1 and M2 survive:


c. If M1 and M2 do not survive:


d. If M1, M2 and B all predecease D:



4. If Ds siblings, parents, grandparents and issue of grandparents are all deceased:

M1 M2
children N1 N2
B D W s s
RDP
C1 C5



5. If there are no surviving relations but for a very remote collateral relative:






6. If there is no potential taker:





HYPOTHETICAL
Wanda married Harry. That marriage produced one child, Aaron. Harry died, and Wanda subsequently
married Herb. This marriage produced two children, Ben and Cassie. (1) Assume that Wanda and Herb
subsequently died. Assume further that Ben died intestate two years later, survived by Aaron and
Cassie. How will Bens estate be divided? (2) Assume that Herb died, and Ben died one year later,
leaving no lineal descendants. Assume further that Wanda died intestate three years after Ben died,
survived by Aaron and Cassie. How will Wandas estate be divided?








F. Probate Proceedings and Will Contests
1. Probate definition:



2. Will Contests
a. In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate
on the ground that the will is for some reason invalid.
b. The grounds for contest of a properly executed will are generally:
(1)






(2)






(3)






(4)


G. Will Substitutes
1. Ways that people transfer property outside of the probate system (e.g., life insurance contracts, joint tenancies,
pension contracts and annuities, joint accounts, payable on death accounts, transfer on death certificates)

BAR EXAM APPLICATION
Question 4
Applicants were asked to analyze distribution of Hanks estate upon his death. He devised a will that did not provide for his
daughter, Ann, who was conceived with Hanks first wife, now deceased. He later adopted his second wifes minor son, Carl,
but did not amend his will to include Carl.
Under California law, how should the court rule on Ann and Carls claims to an intestate share of the estate?
Applicants must consider the validity of the will, and the intestacy rules concerning an omitted child, discussed later, and an
adopted child.
Adapted from the July 2004 California Bar Exam


BAR EXAM APPLICATION
Question 5
Applicants were asked to analyze the claims upon Teds estate by his family members. Ted was survived by his daughter
Deb, his brother Carl, his brother Abes daughter Ann, his brother Bobs daughter Beth, and his illegitimate son, Sam, who
was confirmed to be Teds son by DNA testing after Teds death.
What interests, if any, do Deb, Sam, Ann, Beth and Carl have in Teds estate?
Applicants must consider principles of intestate distribution, including the rules pertaining to an unknown child.
Adapted from the July 2001 California Bar Exam