Test Tips Use CA law, but consider all arguments you could make to CA court in good faith.

When considering who takes, consider public policy intent, fraud, and administrative costs. Put rule in its own sentence before applying it. Next sentence apply and conclude. Non-probate and probate-testate property both require documents. You dont have heirs until you die, you have heirs apparent. What you expect to inherit is an expectancy cannot usually be transferred b/c not a property interest. When gift fails for want of delivery, try to argue it was a trust and settlor is trustee transferring property to himself with intent to create a trust, holding it for the benefit of someone else (but most courts wont buy this argument). Start with non-probates, then probates, then intestacy. Take the issues in the order they appear on the exam. For trusts, lead with the common law, then consider modern trend. For wills, use CA law.

Issue: Who gets your stuff when you die? It depends if its probate or non-probate. Non-Probate (4 kinds) this is opt-in b/c you must execute instrument (these are will substitutes they act like a will but dont have to go through probate) (1) Joint Tenancy decedents share of joint tenancy extinguishes and he cannot pass interest, shares for other joint tenants are recalculated (right of survivorship, decedents share is extinguished; nothings being transferred, just shares recalculated) Community property with right of survivorship get double step-up and avoid probate Multiple party bank accounts historically always pick joint tenancy b/c protects banks, but modern trend says there is a presumption that inter vivos the parties owned in proportion to their contribution and after death there is presumed right of survivorship (like payment on death clause). (2) Life Insurance K between insurance company and insured, not a transfer from decedent but from insurance company to a 3rd party beneficiary in CA also any K with a payment clause (like pension plans)

Only non probate property not automatically revoked from spouse in divorce.

(3) Legal Life Estates & Remainders must be written in deed (4) Trusts (primary mechanism) bucket 3-party transaction (1) settlor (gives property); (2) trustee (holds legal title, cant use for own benefit, has legal obligation to create income); (3) beneficiary (holds equitable interest) Ok for one person to wear all three hats so long as there is at least one other beneficiary (need to be able to sue someone) A trust will not fail for want of a trustee if trustee dies, court will appoint successor, or trust document can specifically provide for successor. Trustee must accept position, but then cant walk away w/o court approval. Trust only applies to property you own at moment you make trust; must continuously update. Settlor has no standing to sue trustee for not doing a good job or for giving to beneficiary early b/c settlor has made a gift and has no remaining interest in gift, unless it is a revocable trust. Resulting trust not a trust, but if settlor makes trust that fails, court will create a trust so trustee doesnt end up with property. (Sibling of constructive trust judicial remedy). Property will go back to settlors estate and it will fall into probate first to residuary of will then to intestacy. o Charitable trusts can fail when the purpose for the charity is satisfied. o Cy Pres To the extent you have a charitable trust, and the particular purpose becomes impossible, look at the general purpose that the particular purpose is in, and see if you can find another specific purpose in the same general area that the trust can be shifted to before imposing a resulting trust. Types of trusts Inter vivos (typical) stuff put in bucket during life, avoids probate Issue is, is it revocable or not? At common law it is NOT revocable b/c its a gift and youve relinquished dominion and control over the asset. This is the default unless you specify that it is revocable. If you say it is revocable If you are the Settlor and Trustee and Life Beneficiary, with a remainder beneficiary, you havent passed anything to the beneficiary, then this actually looks like a will with a residuary. If B hasnt taken anything, is this really an inter vivos transfer, or is it a testamentary transfer? If its a testamentary transfer it requires a writing. 2

Rule: Revocable trusts are fine, even if you are the Settlor, Trustee, and Life Beneficiary b/c intent is clear and potential for fraud is low. How do you revoke a revocable trust? Its up to the Settlor. If Settlor says its revocable, any and all acts that settlor means to revoke are revoked. But revocation requirements mirror creation requirements. If its real property that required compliance with statute of frauds and writing, then you also need writing to revoke. Can revoke orally if not real property. As a general rule, the wills revocation methods are sufficient to revoke. BUT most trustees require that terms of trust say there must be a writing delivered to the trustee so trustee has notice. Testamentary stuff put in bucket upon settlors death through his will, does not avoid probate because made via will, must be in writing. If no trustee appointed, personal rep is trustee. Power of appointment power to revoke in the hands of someone else. Utata at death, does not avoid probate. Uniform testamentary additions to trust act
A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estateat the time of his or her death shall be distributed to the Trustee of the trust. Such device was always void at English common law, because it was not deemed as a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change.

UTATA (Uniformed Testamentary Additions to Trust Act) Try to make it easier to validate pour over clause CA UTATA: (last page of our statutory handout) o Implicit in pour over: (1) Pour over clause (will) ids trust (2) Terms are set forth in an instrument other than a will (if they were it would be a basic testamentary trust) o (2) Trust instrument is executed (signed) prior to or concurrently with testators execution of the will Okay if unfunded until death Subsequent amendments are valid regardless of when created o If not signed back to CL o If cant fail failed gift failed gift rules o No probate supervision for life o Just to the original signing of the will Property going through pour over clause Doesnt avoid probate

 If testamentary trust stays in probate If not just goes through Want to try to give effect to the testators intent still can fail but look at the 3 ways to validate You can combine and such to get it to work: use republication and UTATA How are trusts bifurcated? (1) Recipient bifurcated into Trustee/Beneficiary Trustee holds legal title Beneficiary holds equitable title (2) Delivery bifurcated into Funding/Ascertainable Beneficiary Funding is when an asset is transferred to the trustee 2-step delivery settlor to trustee, trustee to beneficiary (3) Gift bifurcated into Principle/Income Trustee has legal obligation to use prop to generate income Trust is an ongoing gift Creating a Trust Intent to make a gift in trust (dont need to specifically state, but if trust language is used, almost per se evidence that trust is being created) Jiminez definition anytime one party transfers property to a second party for the benefit of a third party Precatory trust not a trust, just a gift with a hope or wish that it will be used in a certain way (watch out for this!) Jimenez Grandma gave money to dad to use for daughters education. Dad treated money as his own and daughter sued dad. This was precatory gift; grandma hoped dad would use it for daughters education, but he had no legal obligation to do so. Where settlor is also trustee, courts require additional information to show intent. Funding trust created when something put in bucket for benefit of 3rd party. Make sure its not a gift or a gratuitous promise. Future profits are not a property interest that can be put in trust (but may be able to if its classified as a gift) Expectancy is not property interest that can be transferred. (Like if W makes will saying he gives all the property he expects to get from his mom when she dies to Lulu) Ascertainable beneficiary Clark Provision in will disposing tangible personal property to personal rep to give to friends as he sees fit. This is a trust b/c 3 party transaction with

rep acting as conduit. Personal rep tried to keep, arguing it was a precatory trust. Friends are not ascertainable beneficiaries. Resulting trust doctrine kicks in. Issue, children (including unborn ones), or relatives can all be ascertainable beneficiaries. We need to know who has standing to take under the trust and to sue the trustee b/c settlor cant sue. Is a pet an ascertainable beneficiary? Trust for lifetime of dog, and upon death, trust terminates and property distributed to ascertainable person. Is this a valid trust? No b/c dog doesnt have standing to sue. But does trust fail? Yes, but court characterized this as an honorary trust not a real trust, and dog still gets gift b/c it was for a specific honorable purpose. Court assumes remainder beneficiary will watch over trustee. Honorary trust can also be used for maintenance of your gravesite. Gravesite does not have standing to come in and sue, not an ascertainable beneficiary but courts allow it. But courts will not appoint successor trustees for an honorary trust only lasts for length of time trustee will honor the terms of the trust. Exception to rule that trust wont fail for want of a trustee. Theyre not legally required to honor b/c there is no one with standing to hold them to it. Money would go to remainder of trust and then use resulting trust doctrine. Writing? Only required if there is real property b/c of statute of frauds or testamentary b/c its through a will HYPO: Mom has cancer, tells kid she wants him to have her real property if she dies but if she beats cancer she wants kid to give it back. She wanted to make a trust, but it failed b/c it was for real property and not in writing. She funds trust by transferring deed. Deed says mom to son and son orally agreed that if she beats the cancer hell transfer it back. Should have said to my son as trustee, and separate document with terms of the trust. When mom recovers, kid refuses to return. Rule if you have an inter vivos trust with respect to real property that fails for want of writing, then it is actually a gift b/c the trust isnt enforceable b/c SOF requires writing. Modern Trend Remedies constructive trust b/c unjust enrichment, not a real trust so not subject to statute of frauds. Or resulting trust and trustee must give property back b/c trust failed which also isnt subject to statute of frauds b/c not real trust. HYPO: Mom transfers house to son when shes sick to avoid bank going after property to pay medical bills, and they agree that after the treatment son would give it back. Equity will not serve ones who comes to court with unclean hands. So son would get to keep property and remedies dont apply. 5

HYPO: T leaves in her will estate to Reverend to distribute at his discretion in line with how T expresses her intent. Sounds like he is trustee of testamentary trust, but for testamentary trust the terms of the trust must be in writing, so this trust fails. This gives rise to either a semi-secret or a secret trust. This is a semi-secret trust with a patent ambiguity. At CL, wont take extrinsic evidence with patent ambiguity so court doesnt know who beneficiaries are so cant impose constructive trust, but can impose resulting trust. Semi-secret trust trust where there has been an oral agreement to create a trust, and will references trust but doesnt state all the terms. It is evidenced by the four corners of the will and you get a resulting trust. Secret trust Unclear from four corners of the will whether it is an outright gift or trust (latent ambiguity). Difference courts will impose constructive trust on secret trust and resulting trust on semi-secret trust, but modern trend is that courts dont distinguish b/t latent and patent ambiguity and you can let in extrinsic evidence, so you can always impose constructive trust. Once a trust is validly created, what is the extent of beneficiarys interest? Look at the words of the trust to determine if: Mandatory shall if T doesnt do it T can be sued for breach of trust Discretionary within Trustees control, Trustee must exercise judgment in line with Settlors intent to determine whether or not to make disbursement of principle. Before exercising discretion, check in with Beneficiary there is a duty to inquire as to Bs status so in exercising discretion he can do so in an informed manner. Ex: Trustee sent B questionnaire this is not enough to satisfy inquiry, burden is on Trustee to follow up. Duty to inquire is a heavy burden, T must exercise due diligence, and then after that can exercise discretion (Reasonable & in good faith) Duty to exercise discretion in a Rx way and w/ good faith if trustee properly inquires, it is hard to nail them for abuse of discretion Settlor can effect exercise of discretion in 2 ways: Settlor can say trustee has sole and absolute discretion doesnt really mean that b/c it would be a precatory trust. Just means Trustee doesnt have to act reasonably, just in good faith. If acting in good faith Trustee is protected. Settlor might set forth particular standard that Trustee should keep in mind when exercising discretion to grant disbursement. For beneficiarys comfortable support and maintenance keep beneficiary at standard of living he had at the time he became a

beneficiary. If standard of living begins to slip, Trustee has duty to give principle to B to maintain standard of living. Creditor can reach any property that can be transferred Creditor steps into shoes of beneficiary. If beneficiarys interest was mandatory, creditor can force trustee to give to creditor, but if interest is discretionary, creditor cannot force Trustee to give to creditor. If beneficiary could have forced it, creditor can force it. Many Settlors put spendthrift clause in trust that says B cannot voluntarily or involuntarily transfer interest. Spendthrift clause puts up a wall and prevents creditor from taking from trust, must wait till beneficiary has it. Public policy issue should all creditors be subject to spendthrift clause, or should some be able to pierce? If W runs off with Lulu and leaves G, should G be able to go after his interest in the trust? Does she have special standing? categories of creditors that can pierce: Ex-spouses entitled to alimony Children entitled to child support Government if you owe taxes or Medicaid services Creditor who provides basic necessities doctors Tort creditors are subject to spendthrift clause If there is a mandatory interest, we can force the Trustee to give the property to the creditor, even if the B is a Settlor. If B is Settlor, we dont want to let Settlor hide behind the Trustees discretion, so even if interest is discretionary, creditor can force Trustee to exercise discretion to pay creditor. We dont want to let Settlors hide assets in a trust. Termination of a Trust ends when bucket is empty When should we permit premature termination? (Consider (1) is the trust revocable or irrevocable? (2) is Settlor alive or dead? (3) Is there an unfulfilled material purpose? (4) All contingent on agreement of all Beneficiaries. If its an inter vivos revocable trust, and Settlor exercises right to revoke, it ends. If its an inter vivos irrevocable trust, Settlor has no interest. If Beneficiaries and Trustee agree, they can terminate. Issue is you cant get minors or unborn children to consent to termination. Trustees make money from managing trusts, so might not want it to end. Courts can appoint guardian ad litem for minors and unborn children who can consent for them if it is in their best interest.

What if all beneficiaries intent, but Trustee argues it is counter to Settlors intent can beneficiaries force Trustee to terminate? If Settlor is alive and agrees with Bs, can Settlor override Trustees objection? Yes, even though S has no interest, if S sides with Bs it removes Ts right to block it. If S is dead Claflin Doctrine beneficiaries can force premature termination as long as there is no unfulfilled material purpose. If there is, T can block. Unfulfilled material purpose: Spendthrift clause Discretionary as to principle Support trust (Trustees ability to disburse is limited to amount necessary for support) Modification of the Trust Requirements All beneficiaries must consent Must have been unforeseen change in circumstances Which is materially frustrating Settlors intent Court can order modification of terms of Trust to promote Settlors intent. HYPO: W finds out he has cancer, sets up trust for his life, to G for her life, then to the kids. Says mandatory as to the income but forgot to give her interest in the principle. Then G gets cancer and her expenses go up. Income from trust not enough to provide, but Trustee cant use principle for her benefit. If G and kids get together and agree to let Trustee use principle to give to G for her medical expenses. Bs consent G came down w/ cancer (unforeseen) Ws intent was to take care of G Constructive Trust court may change beneficiary requires (1) unjust enrichment and (2) wrongful conduct by 3rd party who seeks to benefit If its Ts fault, court probably wont use, but if its the fault of a 3rd party, there is a better chance Divine case religious leader had T killed before she could change her will to exclude him Mahoney W kills H, H dies intestate, so wife would collect. Court imposes constructive trust (fiction) and gives to other beneficiaries. Ks with Payment on Death clauses these are valid non-probate transfers for will substitutes apply wills doctrines (lapse, antilapse, abatement) Probate (default) Beneficiary must survive to take (Probate is administered by personal representative: (1) inventory assets; (2) pay creditors; (3) distribute remaining probate property to those entitled to it either by the will or through intestacy

Will (testate) taker is devisee traditional way of opting out of intestacy Requirements: Testamentary capacity (threshold very low) 18 years Sound mind at time of execution Understand nature/extent of property Know who beneficiaries/issue are Understand disposition of property nature of testamentary action being performed Know how it relates to forming orderly disposition of property Defects in capacity (strike only portions of will affected by defect): insane delusion CA approach is more protective of Ts intent than most states if there is any factual basis to support the belief it is NOT an insane delusion (other states use std of any Rx person could come to same conclusion then not delusion (rational basis test)) Must show (1) insane delusion at time of execution and (2) delusion caused defect (but for) Even if you are generally insane but had a moment of lucidity when you made the will, you have testamentary capacity. Factual evidence must have sufficient nexus w/ purported defect. Can also consider if traumatic event started it (prostate surgery in Honigman) Religiously based beliefs not subject to insane delusion analysis Cant invalidate will based on mistake (expensive, potential for fraud) unless mistake rises to level of insane delusion *Is it an ID or a Mistake? Only fix mistake if it is an ID. undue influence Requirements: Confidential relationship low threshold D active in procurement/execution of document D unduly benefits Objective what would D take if will not valid (intestacy) Subjective does relationship justify gift? * If elements met, BOP shifts to D to show no undue influence. Alternative argument requirements: susceptible to undue influence Influencer had motive to exercise undue influence D had opportunity to exercise influence Disposition is result of influence fraud/duress 9

Elements: Intentional misrepresentation Made with the intent to influence Ts testamentary scheme That causes T to dispose of prop in a way he wouldnt have otherwise. 2 Kinds Fraud in the inducement (trick ahead of time) Fraud in the execution (trick into signing) * Only strike portion of will affected by defect (if lacking general testamentary capacity, entire will void) Lawyer drafting will can use his judgment to determine capacity. Same requirements necessary for revocation Strong presumption of capacity, strong evidence needed to rebut. Tortious interference w/ expectancy can try this if other defects due to 3rd parties fail (Anna Nicole Smith) Advantages: Avoids no contest clause Can get punitive damages Statute of frauds longer b/c tort instead of probate. Remedy Constructive trust more likely if there was wrongful conduct by 3rd party who is unjustly enriched. Proper Execution depends on (1) wills act formalities, and (2) judicial interpretation of what degree of compliance with formalities is required Wills Act Formalities Requirements: Writing Misdescription doctrine: if you have a validly executed will that has a misdescription, court can strike the wrong words and see if there is enough left to determine intent. (like wrong number in house address in will) Signed by either (1) T; (2) another in Ts name, in Ts presence, by Ts direction; (3) by conservator pursuant to court order Signature can be anywhere on will Any mark you make that you intend to be a signature is Witnessed (1) by at least two people; (2) present at same time; (3) must witness either signing or acknowledgment of will; (4) must understand instrument being signed is Ts will (CAs rules are easier, but must be strictly complied with) CA does not require that witness sign in Ts presence. This is delayed attestation. How long? Rx time. Witnesses should sign while they still have vivid recollection of what they are signing.

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Interested witness: If a witness is also a taker under the will, there is a conflict. Taker will be purged of excess of what he would have gotten under intestacy or under a prior will. Functions of Requirements Evidentiary (writing) Protective (witness) ensures voluntary intent (no coercion, signer understands) Ritualistic impresses on T finality and gravity of act Channeling we want to channel people to lawyers to ensure their wishes are expressed in way that maximizes probability that theyll be carried out, smoothes out probate administrative process Judicial Interpretation what degree with the wills act formalities is required? *Always start with strict compliance, then consider substantial compliance and harmless error. Groffman T has two witnesses accompany him across hall to sign will. W2 has bad leg, takes him longer, isnt in room when T signs. Will not properly witnessed b/c 2 witnesses not in Ts presence at same time when T signs and acknowledges. Took strict interpretation. Modern Trend: less stringent than Groffman, allows substantial compliance. For witnessing will, CA requirements are not as harsh, but they must be complied with strictly. 2 approaches to presence: Line of sight doesnt actually have to see witness sign, but should be able to if he looks Conscious presence test consider totality of circumstances to see if each party was consciously aware the other was signing (CA) Short form of signature? Ok if this is intent, but if you die during signing not ok under strict compliance. Electronic signature? Not ok. Telephonic presence? Not ok under strict compliance and probably not ok under substantial compliance, but not tested yet. Substantial compliance clear and convincing evidence that decedent intended the document to be his will clear and convincing evidence of substantial compliance with wills act formalities (must be close to having writing/signed/witnessed)

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Flexible strict compliance strict compliance, but uses substantial compliance on certain doctrines. CA claims to be strict, but actually is this. Harmless error (aka dispensing power) courts can dispense with anything they need to figure out the will same as substantial compliance but eliminates 2nd element; only need to show that there is clear and convincing evidence that T intended the document to be the will. Curative Doctrines under Strict Compliance Scriveners Error if the invalid execution is the lawyers fault, fix the mistake. Must show clear & convincing evidence of scriveners error and clear and convincing evidence of effect on Ts intent. (CT is only state that uses, but can argue to CA ct in gf b/c judicially adopted) Extrinsic Evidence court should generally be opposed to b/c properly executed will is best evidence of intent. Only consider if there is an ambiguity. Consider purpose Construction only 4 corners of document, dont take extrinsic evidence unless there is an ambiguity (below). Consider type of ambiguity if construction Patent obvious from 4 corners of the document Latent arises when court tries to construe and give effect to terms of a will (like I give my property to my favorite student Brittney but there are 2 Brittneys in the class) Validity take extrinsic evidence Misdescription doctrine Equivocation doctrine. Personal usage doctrine CA Rule: Use extrinsic evidence to determine if ambiguity. If there is, use extrinsic evidence (doesnt matter if latent or patent). (From Russell dog case). Favor extrinsic evidence of circumstances surrounding T at time of execution over selfserving declarations b/c of concern for fraud. Ambiguity = any time there is express language in will reasonably susceptible to 2 or more interpretations, there is ambiguity and you can use extrinsic evidence. But can only use

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extrinsic evidence consistent w/ one of the possible interpretations. What Constitutes a Will? Doctrine of Incorporation any pieces of paper present at time of execution and intended to be part of the will constitute the pages of the will. Expanding Scope of Will Incorporation by Reference Requirements: T intent to incorporate by reference is expressed in will Will describes document to be incorporated with reasonable Document must be in existence at time will is executed (most important requirement) Application: first 2 requirements applied loosely, 3rd strictly. Purpose: permits documents already in existence to be incorporated. Tangible Personal Property List: for tangible property, can make list that serves as codicil but doesnt have to meet requirements of will, so long as will says youre creating a list. BUT if there is an inconsistency with will, will controls. ($$ does not constitute tangible personal property). If will references, doesnt have to be created before will is executed. Requirements: Unrevoked will that refers to writing Writing is dated Writing is handwritten or signed by T Writing describes items and recipients with Rx certainty extrinsic evidence permitted to help meet requirements and strict compliance with requirements not always needed (flex strict compliance) 1. Aggregate of all gifts cannot be greater than $25K and individual items cannot be worth more than $5K. Doctrine of Republication by Codicil Must have validly executed codicil Re-executes and re-dates underlying will Acts of Independent Significance softens rule that you must execute codicil every time you change a gift or beneficiary Considerations: What is the referenced act? 13

Does the act have significance independent from the will? Act must be performed for valid reason aside from affecting who takes what under the will. What is the potential for fraud? HYPO: W puts in will $1000 to research assistant, but assistant changes each year. If W fires assistant for purpose of changing beneficiaries, this is not independent significance, but if W gets new assistant b/c old one graduates, this is. Used when things change after the will is made (Republication by Codicil (look back to will) and Incorporation by Reference (look back to not will) are look back doctrines). Negative inheritance CL Rule: T cannot disinherit an heir w/o affirmatively naming others to give property to UPC/Modern Trend Rule: allows for express exclusion CA Rule: consider intent, can argue CL and modern Tortious Interference with Expectancy COA Anna Nicole Smith sued kids of husband for trying to hide assets. This is not an attack on the will, it is on a third party, so a no contest clause does not apply Unlike will contests, this tort can result in punitive damages SOL longer b/c tort not probate No Contest Clause clause in will that if you contest you get nothing Softening doctrines: Pretermitted Spouse Protection Doctrine: If you have a will before you get married, get married, then die before changing will, this doctrine protects spouse. Holographic Will only writing and signed (no witness), home-made will by lay person (recognized by states, including CA) Requirements: Written in testators handwriting (makes fraud more difficult) all dispositive provisions must be in Ts handwriting (who gets what) Testamentary intent that document be probated as a last will & testament intent must be either (1) in Ts handwriting or (2) in form language of commercial will.

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HYPO: W has lawyer-drafted will. Later adds at bottom $10K to Lulu. Probably not valid holographic codicil b/c Ws intent for holographic part must be in handwriting or as part of from will. Signature anything T intends to be his signature and must actually be Ts (cant ask someone else like in regular wills) Kimmel Dad signed letter giving stuff to his kids as father this is sufficient signature b/c thats what he intended it to be. CA does not require dating, but it is helpful. If there is an undated holographic will and a dated attested will then attested will prevail unless it can be proved that holographic came after attested (but if not inconsistent can give effect to both) If T may have lacked capacity at time holographic will was made, we presume it was executed when he lacked capacity and it is invalid, unless it can be proven it was executed at a time T had capacity. Holographic Codicil Dukeminier any handwritten interlineation to a holographic will is a valid holographic codicil. So you can change valid holographic will with handwriting. Contextual approach If T attempts a holographic will on a document that has printed material on it, if there is an ambiguity in the handwriting regarding testamentary intent, use the printed words to determine the context in which the handwritten words are being used to help ascertain testamentary intent. But that is only an argument in CA. Not sure if a CA court would agree since the statute specifically says in the testator's handwriting or the printed words of a form will. Condition precedent like if I dont survive the cruise, all my possessions to Lulu in holographic wills we assume this is not a condition precedent and hes just expressing his fear, but in attested will stronger argument that this is valid condition precedent. Presumption is rebuttable by preponderance of the evidence. Contracts Relating to Wills 2 Types: K to put provision in will must either be in writing or referenced in will but can also show clear and convincing evidence to enforce K (CAs flex strict compliance approach). High opportunity for fraud.

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K not to revoke will K not to revoke must expressly be put in will, not implied simply because mirror or joint wills. Remedy for breach this is breach of K, so 2nd will is still probated, then beneficiary of first will sue under K using 1st will as evidence. Court will impose a constructive trust. Stocks as Gifts difficult b/c by their nature they change CA Rule for Stock Splits: If (1) T owns matching shares at time of execution and (2) change in stocks is initiated by the corporation, then (3) beneficiary gets benefit of change. Hypo: W gives 100 shares Amgen stock to B and 100 of In & Out Stock to E. W doesnt own either of these. W dies. Executor must go out and buy stock to give to B and E. If there had been a stock split then executor still needs to give 100 shares, not 200 b/c W didnt own matching shares at time of execution. In & Out is different b/c NOT PUBLICLY TRADED COMPANY gifts of privately held stock are de facto specific gifts, so they dont have to give them if they dont own them at time of execution. Revocation (testamentary act requiring capacity, some jx make it easier to revoke than to write) IF A VALID WILL IS NOT REVOKED, THEN PROBATE IT; PROBATE = CONSTRUE AND GIVE EFFECT TO Write a new valid will Express revocation Implied revocation if new will is inconsistent Codicil must be valid will meeting all requirements that modifies or partially revokes a prior will If you revoke a will all codicils associated with it are also revoked, but if you just revoke the codicil the underlying will remains in tact If second instrument has residuary clause, it is probably whole new will, if not, it is probably codicil Handwritten changes to a valid holographic will counts as a valid codicil, which is less strict than for regular wills where a codicil must be a valid will in and of itself meeting wills act formalities. HYPO: W types in will I give $10K to Eric then gets mad at Eric, crosses out $10K and writes $1 and initials. This is a handwritten interillation and is not a valid holographic codicil. May be valid if original will was holographic. You can make an attested codicil to a holographic will and vice versa.

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Physical act = (1) destructive act and (2) intent to revoke CL: destructive act must affect part of written will CA/modern: will doesnt have to be destroyed by T. Destructive act must be done by T (not his attorney, etc) Partial Revocation by Act like drawing a line through part a sentence in a will, most states dont recognize but CA does. Issue w/ partial revocation they are implicitly new gifts b/c if something is crossed out that gift goes to residuary or intestacy. Court will take extrinsic evidence to show revocation by act. Revocation by Presumption Doctrine use if: Will was last in Ts possession Cant find will after death Only if cant find either original or duplicates There is rebuttable presumption that will is revoked If not rebutted, will goes into intestacy If rebutted, Lost Will Doctrine applies If T had testamentary capacity until time of death, assume there was intent to destroy and testamentary capacity. Revocation by Operation of Law When there is a divorce before will is changed, surviving spouse treated as having predeceased, and provisions in will are revoked by operation of law. Not rebuttable as to wills. Only applies to spouse, not to spouses issue. Non-Probate Property if you execute before or during marriage, instrument is revoked by operation of law, but rebuttable with clear & convincing evidence (but doesnt include life insurance, so that must be affirmatively changed). Dependant Relative Revocation (DRR) If T revokes based on mistake and wouldnt have revoked but for mistake, then revocation is ineffective and is ignored (exception to general rule that we dont correct mistakes). Requirements (think of as 2 doctrines depending on how revoked): Valid revocation Based on a mistake T would not have revoked but for mistake (causation) Generally only permitted by courts in 2 circumstances b/c of high potential for fraud

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If revocation is by ACT only where there is alternative plan of disposition that fails like attempt to make new will or codicil OR Ex: Strike out name of B and write in new name. This is partial revocation, and B1 would get nothing, but it is not valid codicil, so B2 gets nothing. DRR allows gift to be restored to B1. If revocation is by WRITING there is a mistake specifically recited in terms of the revoking instrument AND mistake beyond Ts knowledge Ex: T executes instrument revoking gift to sister b/c sister is dead and giving gift to Pepp, but sister not dead. DRR gives effect to prior will so sister can take. Can try to argue that there is clear & convincing evidence of a mistake that doesnt fit into 2 categories, but this is difficult (only happened once in CA) Spectrum analysis: If part of the will is revoked, taker gets nothing; but if no revocation, taker gets gift. HYPO: Will says I give $1000 to X. T crosses out $1000 and writes in $1500. This is a revocation based on a mistake (failed attempt at alternate disposition b/c thought he had valid holographic codicil). Must show that but for mistake, T would not have revoked. If will is revoked, X gets nothing. If we ignore revocation, X gets $1000. Then consider intent -- $1500 is closer to $1000 than to $0. Lost Wills Doctrine Court will use extrinsic evidence, copies, or drafts. Must prove by clear or convincing evidence or else treated as no will and intestate. Revival if a second will is revoked, the first will can be revived with evidence that T intended the first will to replace the second. Doctrine of Satisfaction Inter vivos gift does not count against testamentary gift unless there is writing expressing that gift count against time of death share. Possible writings By transferor contemporaneous with inter vivos gift By transferee any time By transferor in instrument saying that if inter vivos gifts are made then they will count against gift. Like advancement for intestacy (1st two writings apply) Doctrine of Satisfaction applies only to general gifts b/c for specific gifts addemption kicks in.

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Death of Beneficiary (for wills, trusts, deeds, and life insurance Ks) Lapsed Gift if B dies before T, gift fails. (If B dead at execution, gift void) Where does failed gift go? Depends on Type of Gift General usually money Specific my __ to __, one of a kind gift. If fails, goes to residue. Demonstrative dollar amount from specific source ($10K from by checking account at Bank of Am.) Residuary rest, residue & remainder everything not otherwise given away. If residuary fails, goes to intestacy. But modern trend says you can have residue of residue, so if more than one residuary, other gets all instead of half going into intestacy. Antilapse anytime theres a lapse, check for antilapse! Saves gift by allowing it to go to issue of predeceased beneficiary b/c we presume that T would prefer gift to go to issue of predeceased B. Requirements: Requisite degree of relationship transferee must be related to T or related to Ts surviving, deceased, or former spouse (but cannot actually be Ts spouse) Applies to both lapse and void gifts (if B disclaims interest and is treated as predeceased) and to all NP documents except for JT Goes to issue of predeceased transferee (not to estate of transferee) if transferee has issue. Unless there is express contrary intent in the instrument Exception for if he survives me clause does not go to beneficiarys issue Allen T gave property to living brothers and sisters. One brother dies, but survived by issue. Issue could not take under antilapse b/c living sufficient express language to show contrary intent to issue taking. Class Gift Doctrine (2nd way to save a gift by giving to remaining members of class, 1st is antilapse; APPLY ANTILAPSE FIRST UNLESS IT IS A VOID GIFT INSTEAD OF A LAPSED GIFT AND T KNOWS GIFT IS VOID AS TO THAT MEMBER) if gift is class gift and fails as to one member, that portion goes back in the pot and is redistributed to other members. Membership in class determined at time of death, and only members at that time can take. Considerations for Class Gift Who? Specific names vs. collectively 19

What? Property described in whole vs. in shares (I give my farm to my kids vs. I give 1/5 interest in my farm) Common characteristics between individuals, and are there other individuals in the class who were left out Ts overall testamentary scheme what would happen if doctrine not applied and is it consistent with Ts intent? Dawson T specifically said she didnt want her property to go to her heirs, but to husbands heirs. If gift fails it would fall in intestacy to her heirs. Change in Property Promised to Beneficiary Ademption Identity Approach (CL/CA) if we can identify the gift, give it; if its not there then no gift. No extrinsic evidence; non-rebuttable presumption that T intended to revoke gift. Only applies to specific gifts. Modern Trend T still intended to make gift so if its not there, must give replacement or monetary value. Avoidance & Softening Doctrines for Ademption Characterization as a general gift so ademption doesnt apply (b/c only applies to specific) Change in form, not substance Ex: I give E my checking account at Bank of Am, then changes band to Wamu. Courts might allow this. Ex: Change bank account to CD courts probably wont allow this is more substance. Construe at time of death instead of at time of execution (overlaps with Acts of Independent Significance) Ex: I give my car to E. At time of execution T has VW; at time of death T has jag. This could also be change in form, not substance. Outstanding Balance Doctrine (CA) if specific item not in estate, but transferor is entitled to receive payments, beneficiary can get outstanding balance. Ex: W wills VW to Eric. Then W sells VW to K for $5K. K gives $1K and owes W $4K. If W dies, K actually gets VW + $4K. Eric can get outstanding balance.

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Conservatorship Doctrine (CA) Gifts disposed while in conservatorship are turned into general gifts and beneficiary gets general (FMV) value. Because T lacks capacity, we assume he would have executed a codicil if he could have. Ex: W in accident and in hospital. Conservator sells Ws car for $2500. W dies. Car not in estate, so addemption applies, but beneficiary gets FMV of car. If conservatorship ends and T survives for more than a year, beneficiary cannot invoke conservatorship doctrine b/c T has time to make codicil. Intestacy (* you could die both testate and intestate if you dont leave everything and you dont have a residuary clause) taker is heir heirs take in following order: Surviving spouse takes first (In CA spouse and registered DP are same) Surviving CL = irreversible cessation of lung or heart activity; Modern trend = irreversible cessation of brain activity Survival analysis: (1) did spouse actually survive? (2) did spouse legally survive? Duration of Survival Requirement Party claiming right to take must show by clear and convincing evidence that second spouse to die survived by at least 120 hours (CL rule was that one spouse more likely survived the other by a millisecond) This is different from non-probate/probate-testate survival requirements clear and convincing evidence of survival by a millisecond, unless document expressly states that a longer survival time is required Spouse CP ends when spouses clearly indicate to each other that the marriage is over, but for wills & trusts there is a surviving spouse until divorce decree or death Community property property acquired by either spouse during marriage as a result of labor each spouse has equal interest in CP during marriage; after death of one, survivor gets 100% of deceased spouses half. HYPO: W can give everything to Lulu, but cannot give property that is his earnings during marriage.

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Separate property if marriage ends (death/divorce), earnings are no longer CP; gifts acquired before or during marriage (inter vivos or testamentary) Distribution depends on family situation: If no issue, parents or issue of parents, surviving spouse gets 100% If there is one child or issue of one deceased child, or no issue but parent or issue of parent, surviving spouse gets 50% If there is more than one child, or surviving issue of more than one child, surviving spouse gets 33% If there is no surviving spouse, issue take next in equal* amounts of 100% Issue: can be naturally, artificially naturally (sperm bank), or artificially legally (adoption) Adoptive issue: moment child is adopted, relationship b/t adoptive parents and child is same as natural parent-child relationship with full inheritance rights in both directions Child-natural parent relationship: general rule is complete severance with no inheritance in either direction, but CA statute permits child to inherit from natural parent even if there is no legal relationship Post-death adoption: no severance of P-C relationship if (1) there was a P-C relationship before death and (2) adoption after death of either parent Hall H&W married with kids. H dies. W remarries and S adopts. Hs brother dies intestate. Ct said kids couldnt inherit. CA would have allowed b/c kids can inherit from and through natural parents via post-death adoption and step-parent adoption doctrines. Step-parent adoption: If W & G divorce, G marries Tank, Tank adopts Ws kids (W must consent to give up P-C relationship). Anytime there is an adoption there is full inheritance in both directions. But kids can also still inherit from W in this situation. If G & T did not get married but T still adopted, T is not step-parent and classic adoption rules apply and P-C relationship with W is severed. (Child gets punished for socially unacceptable situation) Children can inherit from step parent/foster parent if: There is a P-C relationship that begins while children are minors and continues throughout lifetime of both parties

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Step-parent would have adopted (attempted adoption) except for legal barrier (natural parent didnt consent) Equitable adoption equity regards as done that which ought to have been done. Child is claiming breach of K and damages are inheritance rights that she would be entitled to. CA Rule: Follows ONeil promise or intention to adopt must be shown by clear and convincing evidence, high threshold. If you prove, you can inherit from, but not through. This is not a true P-C relationship and remedy is damages for breach of K and parent cannot inherit from child. This does not affect relationship with natural parent. Adopting spouse gives inheritance rights from and through as opposed to just from Minary H adopts W so that Hs moms property would go to W when H died, not just to Hs brothers kids. CA & most states allow adult adoption, giving from and through inheritance rights, BUT different rule for nonprobate and probate testate adopted child must live with adoptive parents as a regular member of the household (or household of parents sibling, parent, or spouse) as a minor. In Minary b/c it was a trust (non-probate) W wouldnt inherit b/c didnt live with H as a minor. Same sex couple glitch: Lesbian couple wants to have baby, one artificially inseminates and other wants to adopt. Traditional adoption inheritance scheme would kick out natural mother when second adopted because adoption severs relationship with same-sex partner. To fix equitable adoption or both adopt at same time. CA Rule: For registered DPs samegender rule doesnt apply so if lesbian step-mom moved in with natural mom and adopted she would replace natural dad. Posthumously born kids If W dies while G is pregnant, presumption that W is father and child can inherit from W. At CL child considered born at conception, so if child born w/in 300 days of one parents death, they are considered child for intestacy. Must show that father consented and acknowledged that sperm could be used posthumously. Must show by clear

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and convincing evidence in writing (signed and dated). Making deposit at sperm bank not enough to show consent in CA. Also need writing to revoke permission. Woodward father banked sperm before dying and mom uses it later to get pregnant. CA Rule for Posthumously Conceived Kid: writing signed dated notice to person distributing property w/in 4 mos. of death child must be in utero w/in 2 yrs (so other beneficiaries dont have to wait too long) Sperm can be devised in will but cannot be transferred by devisee. Minors taking property no legal capacity to own, must babysit property until they reach age of majority. CL: guardian held property until age 18, had no power over property, had to go to court to do anything with it. Modern trend: conservatorship greater power to manage property for best interest of child Most flexible: trust put property in bucket, trustee holds and distributes per terms of trust. Trustee usually a professional trustee or bank. This must be opted into; default is guardian or conservatorship. Child must be alive or dead but survived by issue HYPO: Lulu is pregnant, claims W is father, but W denies. Then W dies. Child can inherit from W if child proves paternity; W cannot inherit from child unless he or a member of his family (1) acknowledges and (2) supports the child. BUT neither a parent nor a relative of a natural parent can inherit from child who has been adopted by another couple HYPO: Lulu is pregnant, W denies paternity. Ws mom comes forward and supports child. Child grows up and wins lotto, W can inherit because relative of natural parent acknowledged and supported. Burden of proof for paternity inter vivos is preponderance, post death clear & convincing. If couple is married, virtually irebuttable presumption that husband is father.

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Donator of sperm is not natural father if sperm comes from an authorized sperm bank and is done in a hospital. There is no legal father. HYPO: Ball player has sex, uses condom. After he leaves, girl uses sperm from condom to impregnate herself. Ball player is natural father and must support child. Issue can take in 3 ways Per stirpes division made at first generation, and each member of that generation who is alive or dead and survived by issue gets one share; shares drop by bloodline Bloodline: (traditional approach) issue of one deceased taker take equal shares from taker, regardless of generation from T In CA if a will says T leaves property by representation this means per stirpes. Per capita by representation (CA, but others can be used if specified in written instrument, but that means T is testate, so this is default) division made at first tier with live taker, one share given to each party alive or dead but survived by issue at that tier; drops by bloodline Per capita by generation division made at first tier with live taker with one share to each party alive or dead but survived by issue at that tier; shares are pooled Pooling: (modern trend) all in same generation take same amount If no surviving spouse or issue, parents take in equal amounts of 100% BUT first see if RECAPTURE DOCTRINE APPLIES: Recapture doctrine: If decedent dies with no surviving spouse or issue, ask Was there a predeceased spouse? If YES, recapture all qualifying property second spouse to die received from first spouse upon death. Qualifying property depends if its real or personal Real prop: recapture all real property if spouse died less than 15 years ago

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Personal prop: recapture if (1) spouse died less than 5 years ago; (2) there is a written record, and (3) there is an aggregate value of at least $10K. Distribution of qualifying property (qualifying takers): Issue (equally) Parents Issue of parents * If no qualifying takers, no recapture If no surviving spouse, issue, or parents, grandparents or issue of grandparents take. GP take equally, if no GP, their issue take equally* If no surviving spouse, issue, parents, GP, or issue of GP, issue of predeceased spouse take next, all equally* If no surviving spouse, issue, parents, GP, issue of GP, issue of predeceased spouse, then next of kin take all equally* Parentelic go down family lines Parents and issue of parents GP and issue of GP GGP and issue of GGP Degree of relationship find closest common ancestor between T and B and count the tiers to the B. Degree of relationship with parentelic tie breaker (CA approach) those in the closer parentelic lines take to the exclusion of those in more remote parentelic lines If no surviving spouse, issue, parents, GP, issue of GP, issue of predeceased spouse, or next of kin, then parents or issue of parents of predeceased spouse take, all equally If no surviving spouse, issue, parents, GP, issue of GP, issue of predeceased spouse, next of kin, parents or issue of predeceased spouse, then it escheats to the state

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Disqualifying Doctrines Advancement Doctrine CA/Modern Rule: inter vivos gift does NOT count against time of death share unless there is writing evidencing intent that gift count against time of death share. Donor must create writing contemporaneously with transfer. Donnee can create writing at any time (no dating or signing needed, just preponderance of evidence, low threshold). CL Rule = advanced gift counts against time of death gift. Only applies to intestate property. Homicide killer that is taker under will, trust, or intestacy is treated as having predeceased decedent. Manslaughter will meet requirements for homicide doctrine if it is voluntary (intentional). JT property is severed and turned into T in C killer keeps his/her half, decedents half goes to probate and killer cant take it. Disclaimer Doctrine donnee affirmatively states he does not want to take, treated as predeceased, so lapse/anti-lapse doctrines kick in Hypo: Ws dad dies intestate. Mom gets 1/3, and 4 sons get 2/3. If W disclaims, his portion will just go to the other brothers. If all brothers disclaim, mom gets all. Must disclaim w/in 9 months of Ts death and must be in writing. You can disclaim to avoid creditors (except IRS) court may put in constructive trust (rare) to avoid creditors. A disclaiming party whose shares will pass to his heirs party will not be treated as predeceased for purposes of calculating shares, doesnt allow parties to disclaim to get more shares Ex: M has two kids, B and P. B has one kid. P has 9 kids. B dies. If P disclaims, shares will be calculated at his level so he gets half, not at the kids level, so his side gets 90%. Miscellaneous Migrating Couple HYPO: W spends career teaching in MO, makes $100K (separate property). W & G move to CA and W dies. G has no CP assets. If Ws will gives all prop to Lulu, Lulu gets $100K. OPP. HYPO: W earns $100K in CA. W & G move to MO, W dies. When W dies he has $50K. Ws will gives all to Lulu. G can technically double dip b/c she gets her $50K of CP and she can elect to take or 1/3 from Ws will.

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Migrating runs risk of slipping through cracks in hypo G is legally protected but really isnt b/c assets are characterized at time of acquisition but type of protection is determined at time of death. FIX: Quasi-CP Property that would have been characterized as CP but was earned in a non-CP state is classified as quasi-CP at time of death. If wage-earning spouse dies first, result is same as true CP. If non-earning spouse dies first result is different. (Like if in hypo G gave all to Pepp, but G had no earnings, she doesnt have CP just b/c she moved to CA to give away) FIX: Uniform Disposition of CP Rts at Death Doctrine You cannot claim elective shares of CP assets. Protection Doctrines Predermitted Spouse Doctrine Presumes deceased spouse intended to change will after marriage to provide more for surviving spouse. This is exception to general rule that we dont correct mistakes b/c public policy provides for spouse after death. Requirements: Will executed prior to marriage Generic disinheritance clause (not sufficient to disinherit future spouse unless done with an eye toward marriage) 3 ways to rebut: Will expressly states intent to disinherit There was a transfer to spouse outside of will that was intended to be in lieu of transfer under will must show evidence that it was made in lieu Spouse waived rights premarital agreement If surviving spouse successfully invokes spouse gets intestacy share (1/2 or 1/3) and 100% of CP (gets this anyway). Shares come pro rata from other beneficiaries. If you write a codicil or will after marriage or if you set up a revocable inter vivos trust, you cannot invoke (but can if trust is irrevocable) Pretermitted Child Doctrine Presumes that parent made mistake and intended to provide for child.

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3 ways to rebut (first 2 same as for spouse): Will expressly states intent to disinherit There was a transfer to child outside of the will that was intended to be in lieu of a transfer under will must show evidence that it was made in lieu T can leave all to other parent of child claiming PCD logic is that child will take later from other parent and in the meantime parent will provide for child T must have done this for other kids too If child successfully invokes child gets share he would have under intestacy. Azcunce T provides for wife and kids in will. New kid born, T goes to lawyer to provide for new kid. Lawyer was going to look into it and T was going to come back. In the mean time T executes codicil unrelated to new kid. T dies before changing to provide for new kid. PDC doesnt work b/c T executes codicil so kid is out of luck even though T intended to provide. Attorney caused problem, not T, so maybe could use Scriveners Error Doctrine. If there had not been a codicil, kid would have taken. Unknown child child can take from parent using PCD even if parent didnt know he had child and child would get intestacy share. b. Writing in will that you specifically disinherit any child doesnt work. c. If will created after child is born it is Omitted Child Doctrine. This doctrine also applies if you erroneously think kid is dead. d. Only way to get out of it is to track down all possible kids and find their names and specifically disinherit by name. Stepped-Up Basis HYPO: G & W buy house for $500K, taking as JT. House appreciates to $1.5M and then W dies. Ws basis was $250K, but steps up to $750K. Gs basis is still $250K. If G sells, basis is $1M so G only has gain of $500K instead of $1M. HYPO: Same but G & W take as CP. They get double step-up. When W dies, basis jumps to $1.5M. G has no gain, therefore no taxes. Problem with CP is that it goes through probate while JT doesnt, but CA fixed this by creating CP with right of survivorship get double step-up and avoid probate.

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Any and all assets with appreciation potential can be held as CP w/ right of survivorship. Must specifically put in, not default. Will vs. Trust Trust avoids probate and is easier to create. To create a trust, you must transfer assets into it. Problem is that people are reluctant to put money into trust inter vivos. Can be a hassle to put checking account in it; have to sign checks, W as trustee of Ws trust Have to constantly update trust. How to solve will with pour over clause into a trust Its an inter vivos trust so doesnt go through probate If its a testamentary trust (trust in will) property in trust goes through probate. Trust is subject to Probate Court supervision for its whole life. If its an inter vivos trust, property doesnt go through probate, not subject to Probate Ct supervsion, so this is preferable. Pour over will must have pour over clause (typically in residuary clause) gives rest of property to Trustee of trust to hold and distribute pursuant to terms of trust. Pours property from will into trust. This is ok b/c of Doctrine of Incorporation by Reference youre incorporating the language of the trust instrument (terms of the trust) into the will. 2. Document must be in existence at time of reference 3. Must describe document with Rx certainty 4. Also could use Acts of Independent Significance if trust document not in existence, but only if trust created inter vivos and has property in it at time of death. Must validate pour over clause or else it is a failed gift. IF there is a subsequent amendment to trust can we give effect to it? No. Amendment not in existence at time will was executed, so cant do it under Incorporation, but can under Acts of Independent Significance. UTATA Uniform Testamentary Additions to Trust Act if (1) the will references the trust (pour over clause) and (2) terms are set forth in separate document, and (3) trust is signed prior to or concurrently with execution of the will you get: pour over clause is valid any amendments are valid regardless of when theyre created

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even if trust is completely unfunded until you die, its not subject to Probate Ct supervision. Property still goes through probate, but once its poured into the trust you get the benefits of it being an inter vivos trust. If you cannot meet the requirements of UTATA, then fall back to CL doctrines to validate the pour over clause so it doesnt fall to intestacy. If you see a pour over clause, validate it! Use 3 doctrines!

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