NINTH CONCEPT: REVOCATION BY SUBSEQUENT WRITTEN INSTRUMENT
2 Issues:
Manner of revoking
Revival
MANNER OF REVOKING
Question: How many ways can Will #1 be revoked by Will #2?
Answer: Two ways: Express and Implied.
A. EXPRESS REVOCATION:
1. Will #1 can be revoked by Will #2 if Will #2 expressly revokes Will #1.
2. Example: If Will #2 states, "I hereby revoke all previou
REVIVAL
A. REVIVAL CAN BE BEST UNDERSTOOD BY EXAMINING THE CONCEPT WITHIN THE TWO SITUATIONS IN WHICH REVIVAL CAN ARISE ON THE BAR EXAM:
1. Situation #1: Revocation by physical act.
a. Example: Testator executes Will #1. Testator thereafter executes Will #2, whic
TENTH CONCEPT: REVOCATION BY OPERATION OF LAW
4 Issues:
Omitted child
Omitted spouse
Omitted domestic partner
Final dissolution of marriage or domestic partnership
***OMITTED OR PRETERMITTED CHILD
A. DEFINED: A child born or adopted after all testamentary instruments are executed and not provided for in any of them
1. Typical scenario:
a. Testator writes a will
b. Then testator has a child
c. testator dies w/o having changed the will
2. Testamentar
OMITTED SPOUSE
A. DEFINED: a surviving spouse who married T after execution of all testamentary instruments, and who is not provided for in any.
1. Typical Scenario:
a. T executes a will
b. T marries
C. T dies w/o amending the will
2. Testamentary instrument includes:
a
3 EXCEPTIONS to pretermitted spouse issue:
If any apply, the omitted spouse will not take the aforementioned statutory share:
1. First exception: T's failure to provide was intentional and that intention appears in the testementary instruments
a. Example: Testator's will states, "I presently am no
WAIVER & pretermitted spouse
1. Waiver defined: a voluntary relinquishment of a known right, whether signed before or during marriage.
2. What can be waived?
a. Any and all probate rights can be waived: the right to take a probate homestead, a family allowance, an intestate share, an
OMITTED DOMESTIC PARTNER
A. DOMESTIC PARTNERS DEFINED:
1. Partners must be
I. of the same sex, or
II. of the opposite sex and at least one person is at least 62 years of age, AND
2. Partners must have filed a declaration of domestic partnership with the Secretary of State.
B. Cal
FINAL DISSOLUTION OF MARRIAGE OR DOMESTIC PARTNERSHIP
Four rules regarding testamentary gifts:
A. By operation of law, there is a 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.
B. Legal separation d
ELEVENTH CONCEPT: REVOCATION BY CHANGE IN PROPERTY HOLDINGS (ADEMPTION)
4 Issues:
Classification
Ademption by extinction
Ademption by satisfaction
Advancements
CLASSIFICATION OF 4 TYPES OF GIFTS:
A. SPECIFIC DEVISE:
1. A specific devise is a gift of a particular item.
2. There is something unique about it.
3. Testator must have the intent the beneficiary takes this particular thing, and nothing else. Because testator is dead, we must look to objec
ADEMPTION BY EXTINCTION
A. COMMON LAW TEST: Ademption by extinction is when a specific gift fails because testator did not own the property at testator's death.
1. It was a simple mechanical test.
2. If the testator did not own the specific property at his death, the gift failed
ADEMPTION BY SATISFACTION
A. DEFINITION: Testator gives the beneficiary an inter-vivos down payment on a devise.
1. Example: Testator executes his will leaving a $1,000 devise to beneficiary. Testator later goes to beneficiary and says, "I've left you a $1,000 devise in my will. B
ADVANCEMENTS
A. DEFINITION: Recall that a satisfaction is an inter-vivos down payment on a devise. An advancement is similar: it is an inter vivos down payment on intestacy
1. Thus, a satisfaction deals with a testacy situation (decedent dies with a will), whereas an
TWELFTH CONCEPT: CONTRACTS (TO MAKE A WILL OR DEVISE, OR TO NOT MAKE A WILL OR DEVISE)
5 Issues:
Scenario
Requirements
When the cause of action accrues
Joint and mutual wills
Remedies available to promisee
SCENARIO
Example: Testator executes a will that states, "I leave Blackacre to Abel." Can testator revoke the gift and execute another will leaving Blackacre to Baker?
A. Yes, because you can change your will at any time before death
B. But what if there is a contr
REQUIREMENTS FOR A CONTRACT TO NOT REVOKE (OR TO MAKE A WILL)
A. FIVE ALTERNATIVE WAYS IN CALIFORNIA:
1. The will or other instrument (e.g. a trust) states the material provisions of the contract.
Example: Testator's will state: "In consideration of the $5000 Abel has given me, I have promised to devise Blackacre to
WHEN THE CAUSE OF ACTION ACCRUES
A. GENERAL RULE
1. When the decedent dies
2. Rationale: No cause of action arises at the time of breach because a moment before decedent dies, decedent can execute a new will that would be in compliance with the contract. In such case, the promisee has no
JOINT AND MUTUAL WILLS
A. DEFINITIONS
1. Joint Will: the will of 2+ ppl on a single doc
a. The provisions do not have to be reciprocal.
b. When the first person dies, the will is probated. When the second person dies, the will is probated again.
2. Mutual Wills (also known as R
REMEDIES AVAILABLE TO PROMISEE
A. Damages
B. SPECIFIC PERFORMANCE: Plaintiff can seek to force the executor to comply with the terms of the contract.
C. CONSTRUCTIVE TRUST REMEDY: the court can probate the will as it is, giving the property to the devisee, and make the devisee a constr
THIRTEENTH CONCEPT: RESTRICTIONS ON TESTAMENTARY DISPOSITIONS
3 Issues:
Definitions
Spousal/domestic partner protection
Unworthy heirs or beneficiaries
DEFINITIONS
CP, SP, QCP
A. COMMUNITY PROPERTY 1. Defined by way of exclusion: 2. All property acquired during marriage or domestic partnership while domiciled in California that is not separate property.
B. SEPARATE PROPERTY 1. Property that is acquired before marriage or domest
SPOUSAL/DOMESTIC PARTNER PROTECTION
A. PROTECTION IS GIVEN TO THE SURVIVING SPOUSE OR DOMESTIC PARTNER BASED UPON OUR COMMUNITY PROPERTY SYSTEM.
B. FOUR RULES TO PROTECT THE SURVIVING SPOUSE OR DOMESTIC PARTNER.
1. Protection regarding community property:
a. Testator can dispose of only � o
UNWORTHY HEIRS OR BENEFICIARIES: KILLERS
A. CERTAIN KILLERS CANNOT TAKE ANY BENEFITS UNDER THE WILL OR BY INTESTACY. WHICH KILLERS?
B. THOSE WHO
FELONIOUSLY AND INTENTIONALLY KILL
THE DECEDENT.
C. PROOF NEEDED:
1. A conviction (which includes a plea of guilty) is conclusive.
2. In all other case
FOURTEENTH CONCEPT: INTESTATE SUCCESSION
6 Issues:
***Surviving spouse/domestic partner
***All others
***Per capita/representation
Adopted children
Non-marital children
Half-bloods
SURVIVING SPOUSE/DOMESTIC PARTNER
A. COMMUNITY PROPERTY: Surviving spouse or domestic partner inherits decedent's � of the community property.
1. Note surviving spouse or domestic partner already owned � of the community property.
2. Thus, the surviving spouse or domestic partner ends up
ALL OTHERS (INTESTATE LEAVES NO SURVIVING SPOUSE OR DOMESTICPARTNER)
A. INTESTATE SCHEME
1. Issue (children -> great grandchildren)
2. Parents
3. Issue off parents
4. grandparents
5. Issue of grandparents
6. Issue of a predeceased spouse or domestic partner:
A. Definition of a predeceased spouse or domestic partner: a spou
PER CAPITA/REPRESENTATION PROBLEM
A. WHENEVER ISSUE TAKE BY INTESTACY, OR IF A WILL OR TRUST PROVIDES FOR ISSUE TO TAKE WITHOUT SPECIFYING THE MANNER, THEY TAKE IN THE MANNER PROVIDED IN SECTION 240 OF THE PROBATE CODE. THIS MEANS:
1. Issue of the same degree take "per capita," or equally
ADOPTED CHILDREN
A. an adopted child is always treated as a natural child of the adopting parents.
B. REGARDING THE ADOPTED CHILD'S NATURAL PARENTS, THE ADOPTION SEVERS THE RELATIONSHIP.
1.
Exception
: The relationship to the natural parent is not severed if the adoption
NON-MARITAL CHILDREN
A. IN CALIFORNIA, MARITAL STATUS OF THE PARENTS IS IRRELEVANT.
B. THE KEY IS WHETHER A PARENT-CHILD RELATIONSHIP EXISTED, IRRESPECTIVE OF MARITAL STATUS.
C. IN A DOMESTIC PARTNERSHIP, A PARENT-CHILD RELATIONSHIP IS ESTABLISHED AS TO THE NON-BIRTHING PARTN
HALF BLOODS
A. DEFINED: Relatives who have only 1 common parent, and not 2.
B. EXAMPLE: Half-siblings
C. RULE: Relatives of the half-blood inherit the same as the whole blood.
FIFTEENTH CONCEPT: DISTRIBUTION OF THE ESTATE: WHO CAN TAKE?
3 Issues:
Posthumous Children
***Lapse and anti-lapse
Simultaneous death
POSTHUMOUS CHILDREN
A. A posthumous child is a child conceived during the lifetime of the intestate or testator but born after the death of the intestate ortestator.
B. Posthumous children are deemed heirs of the intestate and beneficiaries of testator's will.
LAPSE AND ANTI-LAPSE
A. FOR A BENEFICIARY TO TAKE A DEVISE, BENEFICIARY MUST SURVIVE THE TESTATOR; dead people do not take. This is common sense. This brings us to the rule of lapse, and the anti-lapse statute.
B. RULE OF LAPSE:
1. If it is required that the beneficiary survi
SIMULTANEOUS DEATH
A RECALL THAT UNDER THE RULE OF LAPSE, DEAD PEOPLE CANNOT TAKE BY WILL OR TRUST OR INTESTACY.
B. SIMULTANEOUS DEATH INVOLVES THE FOLLOWING PROBLEMS:
If the devolution of property is dependent on one person surviving another, and it cannot be determined by
SIXTEENTH CONCEPT: DISTRIBUTION OF THE ESTATE: WHAT DOES A BENEFICIARY TAKE?
5 Issues:
After-acquired property
Increase during Testator's lifetime
Increase after Testator's death and during probate
Abatement Exoneration
AFTER-ACQUIRED PROPERTY
A. A WILL PASSES ALL PROPERTY THE TESTATOR OWNED AT DEATH, INCLUDING AFTER- ACQUIRED PROPERTY.
B. AFTER-ACQUIRED PROPERTY DEFINED:
Property acquired after the will is executed.
c. EXAMPLE: In 2010, testator executes a will leaving, "All of my estate to Ma
INCREASE DURING TESTATOR'S LIFETIME
A. RULE: Stock dividends or splits paid during testator's lifetime go to the beneficiary if the stock is owned by testator at testator's death.
B. EXAMPLE: T devises 100 shares of Chevron stock to the beneficiary. Before T dies, C declares a stock dividen
INCREASE AFTER TESTATOR'S DEATH AND DURING PROBATE
A. REGARDING SPECIFIC DEVISES, ALL INCREASE GOES TO THE BENEFICIARY:
1. Stock dividends
2. Stock splits
3. rents
4. Cash dividends
5. Interest on indebtedness
B. AS A GENERAL RULE, GENERAL DEVISEES DO NOT RECEIVE ANY INCREASE.
1. Exception: General pecuni
ABATEMENT
A. DEFINED: the process by which certain gifts are decreased.
B. WHEN ABATEMENT ARISES:
1. When it is necessary to pay for the share of the omitted child or omitted spouse or omitted domestic partner.
2. When there is an omitted child or omitted spouse or
EXONERATION
A. DEFINED
The debt is extinguished
B. COMMON LAW VIEW:
If testator devised a specific gift subject to an encumbrance (e.g. a mortgage) for which testator was personally liable, the executor was required automatically to pay off the debt before passing th
SEVENTEENTH CONCEPT: WILL SUBSTITUTES
2 Issues:
Gifts causa mortis
Totten trusts
GIFTS CAUSA MORTIS
A. DEFINED: a gift made in contemplation of imminent death
B. PROPERTY THAT CAN BE THE SUBJECT OF A GIFT CAUSE MORTIS:
Personal property only; no gifts of real property.
C. DONOR MUST MAKE A DELIVERY OF THE PROPERTY TO DONEE.
1. Delivery can be one of thr
TOTTEN TRUSTS
See in trusts lecture.