bmi264's version from 2016-07-20 00:46


Question Answer
Capacity - 5 At the time of execution, T must 

be at least 18 years old,
understand the extent of her property,
know the natural objects (spouse, issue or parents) of her bounty, and
know the nature of her act (she is executing a will)
If no capacity - 2entire will is invalid, property passes by intestate succession
Unless T had a valid prior will that was purportedly
revoked by a second will (no capacity), then the first will be probated because the second will w/ no capacity could not revoke the first. 

Insane delusion -A will can be attacked for lack of intent if T had an insane delusion:
T had a false belief that was the product of a sick mind,
not a scintilla of evidence to support the belief and
the delusion affected the T’s will.
Only part of will that was affected by the delusion is invalid and it will go to the residuary devisee, OR if none, or if the residue itself was infected by the delusion, by succession
FraudThere must be a representation of material fact known to be false by the wrongdoer for the purpose of inducing action or inaction; and in fact induces the action or inaction desired. 

Fraud in the ExecutionSomeone forges T’s sig to a will or T is given a doc to sign that purportedly is not a will, but it is
Consequence: The entire will is invalid and the property passes by succession, unless there was a prior valid executed will.
Fraud in the Inducementwrongdoer's representations affect the contents of T's will.
[don't give money to X, who got charged with a crime, give it to son]
Consequence: Only that part of the will affected by the fraud is invalid.
A court can take three actions as to that part:
Give the property to the residuary devisees, if any 

If there is no residue, to the heirs at law by 
intestate succession 

Or create constructive trust to prevent fraud or unjust enrichment 

Distinguish: In fraud in the execution, T does not intend the document to be his will but in fraud in the inducement, T intends the document to be his will, however, the contents are affected by misrepresentation.
Fraud in preventing T from revoking
T plans to revoke a gift but is fraudulently prevented from doing so.
Consequence: court will not probate the will and the property will go to the heirs.
Decree the heirs as a constructive trustee with duty to transfer the property to the intended beneficiary.

Undue influence

Question Answer
Undue influenceoccurs when the T's free agency is subjugated.
The will is invalid if it meets any of the three tests
1 Prima Facie CaseA Prima Facie Case of undue influence requires showing
Susceptibility, that T has a weakness and can have his free will subjugated [psychological, financial, physical]
Opportunity, that wrongdoer had access to the T
Active participation, an act that gets the gift – can be force, threat of force, blackmail, etc. and
Unnatural result, wrongdoer takes devise that is unexpected – has no relationship to T
2 Case Law PresumptionTo a get a case law presumption of undue influence one must show
Confidential relationship between the T and the wrongdoer.
CA confidential relationship arises whenever 1 person reposes trust in another + (Atty/Client, Dr./Patient, Guardian/Ward, Clergy/Penitent, Trustee/Beneficiary)
Active participation
Unnatural result
Effect of Prima Facie or PresumptionOnly the part of the will affected by the undue influence is invalid – goes to residuary, if none then the heirs by succession, or via CT w/duty to transfer to the intended beneficiary. Whichever one which gets the best result
Distinguish: fraud in the inducement requires a lie but undue influence has an truthful wrongdoer: leave me your property or I will kill your family.
3 Statutory Presumption of Undue InfluenceCalifornia statutorily presumes that a provision of an
instrument (will, trust, or deed) making a donative transfer to the following persons is by undue influence:
Person who drafted the instrument
Person in a fiduciary relationship with T (atty) who transcribed the doc
Care custodian of a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor or w/in 90 days before or after that period
The spouse, blood relative, cohabitant, or EE of a person described in 1 and 2.
Rebuttable – by clear and convincing evidence
Consequence: the transferee is deemed to have predeceased the transferor without spouse, domestic partner, or issue and the gift “lapses.”
As to that lapsed gift, it passes to the residuary devisee if any, or, if no residue, to the heirs at law by intestate succession. 

Statutory Presumption does not apply to1. Spouse, domestic partner, cohabitant, or blood relative of the transferor, unless also a care custodian
2. An instrument reviewed by an independent attorney; or 

3. A transfer that does not exceed $5,000, if the estate is over $100,000 (i.e., a “small” gift when there is a “big” estate)


Question Answer
Physical Act
#1 Three Elements to Revocation by Physical Act1. Revoking a will via physical act includes
burning, tearing, destroying, canceling (crossing out) or obliterating (erasing).
2. T must have the simultaneous intent to revoke
3. The act must be done either by T, or by someone in T’s presence and at his direction
4. If only part of the will was destroyed, extrinsic evidence admissible to show whether T intended partial or full revocation
#2 Cancellations and Interlineations Rules - 61. Interlineation means crossing out and writing in new content.
2. Increase/Decrease in amount of gift - See DRR going up and going down.
3. Changes to a holographic will – change to $ via interlineation of a holographic will results in a revocation and a valid new disposition.
4. No signature needed because the T’s prior signature is deemed adopted at interlineation and all the material terms are in T’s own handwriting.
5. A T cannot increase the gift to a co-beneficiary through cancellation.
a. If a T tries to cancel the co-gift to A and B by canceling the gift to B, A gets 50% and the remainder goes to residuary devisees or, if none, by intestacy
6. An interlineation or other handwritten addition to a typed (attested) 
will that does not qualify as a holographic codicil may nonetheless be a valid cancellation.
a. Eg. writing Null and Void to a valid typed will is a valid cancellation even without a signature.
#3 Duplicate Original Wills1. The fact scenario: T and witnesses sign the will, then they do it again on a duplicate original. Thus, T signs and witnesses sign on duplicate #1; then they sign again on duplicate #2. Consequently, there are 2 sets of original signatures.
2. Rule: If T (or under his direction + presence) revokes by physical act one of the duplicate originals, then the other duplicate original also is revoked, as a mater of law.
#4 Discovery of a Mutilated WillIf a will is found in a mutilated condition at T’s death, and it was last seen in T’s possession, there is a rebuttable presumption that T mutilated the will with the intent to revoke the will
#5 Missing Wills1. If T was competent until death, the will was last known to be in T’s possession, and neither the will nor a duplicate is found at death, it is presumed that T destroyed the will w/the intent to revoke
#1 Manner of Revoking1. Express Revocation – Will #2 expressly revokes Will #1
2. Implied Revocation – Will #2 revokes Will #1 by implication if Will #2 totally disposes of T’s estate – there is nothing for Will #1 to act upon but revoked only to extent inconsistent with the new will
#2 Revival1. A revoked will can be probated via revival if the revocation was by physical act
a. If W2 is revoked by a physical act, W1 is not automatically revived.
b. W1 revived only if T manifests an intent to revive
c. Oral statements by T at the time W2 was revoked are admissible
d. Note: “Now everything is back the way I want it,” is not clear: Is W1 back in operation, or does T mean that now he dies with no will?
2. Revival after revocation by subsequent instrument
a. If W1 revoked by W2, and W2 revoked by a codicil, W1 is not automatically revived unless it appears from the terms of the codicil that T wanted W1 revived.
#1 Omitted child1. If a child is born or adopted after all testamentary instruments are executed & not provided for
2. Child receives an intestate share of assets T owned plus the assets held in any intervivos trust
3. Other gifts will have to be abated or reduced, thus revocation by operation of law
Omitted Spouse1. An omitted spouse is a surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for.
2. Omitted Spouse will receive intestate share (community property, quasi community property and up to 50% of separate property)
When Omitted Spouse Does Not Take Intestate Share1. Omission was intentional as shown in the will
2. Spouse is provided for by transfers outside the will, or
3. Spouse made a valid agreement waiving right to share in decedent’s estate.
4. There was waiver, a voluntary relinquishment of a known right, whether signed before or after marriage. It requires:
a. a writing, signed by the waiving spouse 
before or during marriage
b. Full disclosure by decedent of decedent’s finances
c. Waiving spouse has independent counsel.
2. If there is no disclosure or independent counsel, waiver still enforceable if the waiving spouse had or should have had knowledge of the T’s finances, or the waiver was in fact fair.
3. But an unconscionable waiver will not be enforced.
Domestic Partners1. Domestic partners are treated just like spouses.
2. Partners must be of the same sex, or of the opposite sex and at least one person is at least 62 years of age, AND
3. Partners must have filed a declaration of domestic partnership 
with the Secretary of State.
#2 Final dissolution of marriage or domestic partnership1. By operation of law, annulment/divorce, or end of domestic partnership revokes the devise to the spouse or domestic partner
2. Legal separation does not count.
3. Devise is automatically reinstated if the will is unchanged and the T remarries or reestablishes domestic partnership with same spouse/partner
4. These rules do not apply if the will expressly states otherwise: Even if my marriage terminates, my spouse is to take all my property