SEPTEMBER 18 , 2014

Week 5

Last Week

Finished Talking About InternationalitiesWent Through Formalities

Internationalities Formalities

Capacity In Writing

Undue Influence Signed By The Testator

Fraud Witnessed

Duress OR Holographic

Components Of The Will

Documents Outside of the Will Incorporation By Reference

Acts of Independent SignificanceAmbiguous Language

Probate Code Sections 21120, 21121, 21122 Sets Forth The Following: Every Provision Is To Be Presumed To Have An Effect

Likewise, Every Will Is To Be Presumed Valid If One Provision Is Ambiguous, Another Provision May Be

Referenced To Explain The Ambiguous Provision Words Should Be Given Their Plain Meaning, Unless They

Are Technical Terms, Unless Then They Should Generally Be Given Their Technical Meaning

Lapse

What Does it Mean to Lapse? When a beneficiary predeceases the testator, and

there is no contingent beneficiary, then the gift lapses A lapsed gift will go to the residuary, or if none, then the

gift will follow intestate succession When a beneficiary is dead at the time the will is

executed, the gift is void, and the lapse rules control

Anti-Lapse

Probate Code Section 21110 reverses the common law dynamic Instead of the gift lapsing unless the will provides

otherwise, Section 21110 provides that the issue of a predeceased beneficiary will step into the place of the predeceased beneficiary unless otherwise provided by the will.

Estate of Tolman The Court found that the disinheritance clause did not

express an intent to reject Probate Code Section 21110, only to express an intention not to provide any other specific gift Why is that not the same thing?

Ademption

What is Ademption? Traditional Rule: Ademption by extinction is when a specific devise

of personal or real property is no longer the property of the testator at their death What is a specific gift?

Specific gifts are gifts that are personal or real property identified with specificity, and not solely for their value • Example: “I give my son $100”• Example: “I give my son my rare $100 bill with the identification number

123” Intent Theory: If the specifically devised item is not in the

testator’s estate, if the beneficiary can show that the testator wanted the beneficiary to have the value of the item or the replacement item, then the beneficiary can recover that value/item Example: “I give my daughter my personal residence located at 123

fake street”

Ademption

Estate of Anton What type of theory of ademption was used by the

court? What needed to be shown for the ademption to not

occur? (1) Had Capacity, (2) Testator Knew of Property Being

Sold, (3) Testator Did Not Change Estate Plan What does this case show?

That in intent theory jurisdictions whether a gift is considered adeemed is a very fact specific showing

Types of Gifts

Probate Code Section 21117 Specific Gift: “a transfer of specifically identifiable property” General Gift: “a transfer from the general assets of the

transferor that does not give specific property” Demonstrative Gift: “a general gift that specifies the fund or

property from which the transfer is primarily to be made” General Pecuniary Gift: “a transfer of property made in an

instrument that either is expressly stated as a fixed dollar amount or is a dollar amount determinable by the provisions of the instrument” (From Section 21118)

Annuity: “a general pecuniary gift that is payable periodically.”

Residuary Gift: “a transfer of property that remains after all specific and general gifts have been satisfied”

California Ademption Statute

Probate Code Section 21133 A recipient of an at-death transfer of a specific gift has a right to the property specifically given, to the extent the property is owned by the transferor at the time the gift takes effect in possession or enjoyment, and all of the following: (a) Any balance of the purchase price (together with any security agreement) owing from a purchaser to the transferor at the time the gift takes effect in possession or enjoyment by reason of sale of the property. (b) Any amount of an eminent domain award for the taking of the property unpaid at the time the gift takes effect in possession or enjoyment. (c) Any proceeds unpaid at the time the gift takes effect in possession or enjoyment on fire or casualty insurance on or other recovery for injury to the property. (d) Property owned by the transferor at the time the gift takes effect in possession or enjoyment and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically given obligation.

California Gift Satisfaction

Probate Code Section 21135(a) Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer to that person in whole or in part only if one of the following conditions is satisfied: (1) The instrument provides for deduction of the lifetime gift from the at-death transfer. (2) The transferor declares in a contemporaneous writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer. (3) The transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer. (4) The property given is the same property that is the subject of a specific gift to that person. (b) Subject to subdivision (c), for the purpose of partial satisfaction, property given during lifetime is valued as of the time the transferee came into possession or enjoyment of the property or as of the time of death of the transferor, whichever occurs first. (c) If the value of the gift is expressed in the contemporaneous writing of the transferor, or in an acknowledgment of the transferee made contemporaneously with the gift, that value is conclusive in the division and distribution of the estate. (d) If the transferee fails to survive the transferor, the gift is treated as a full or partial satisfaction of the gift, as the case may be, in applying Sections 21110 and 21111 unless the transferor's contemporaneous writing provides otherwise.

Abatement

Probate Code Section 21401Except as provided in Sections 21612 (omitted spouse) and 21623 (omitted children) and in Division 10 (commencing with Section 20100) (proration of taxes), shares of beneficiaries abate as provided in this part for all purposes, including payment of the debts, expenses, and charges specified in Section 11420, satisfaction of gifts, and payment of expenses on specifically devised property pursuant to Section 12002, and without any priority as between real and personal property

Order of Abatement

Probate Code Section 21402(a) Shares of beneficiaries abate in the following order:

(1) Property not disposed of by the instrument.(2) Residuary gifts.(3) General gifts to persons other than the transferor's relatives.(4) General gifts to the transferor's relatives.(5) Specific gifts to persons other than the transferor's relatives.(6) Specific gifts to the transferor's relatives.

(b) For purposes of this section, a “relative” of the transferor is a person to whom property would pass from the transferor under Section 6401 or 6402 (intestate succession) if the transferor died intestate and there were no other person having priority.

Advancements

Common Law: Any lifetime gift to a beneficiary was considered a prepayment on the testamentary gift unless evidence shows otherwise

Modern Rule: Any lifetime gift to a beneficiary is not considered a prepayment on the testamentary gift unless evidence shows otherwise

Revocation of Wills

3 Types of Revocation:1. Revocation By Writing2. Revocation By Physical Act3. Presumption Of Revocation

Revocation By Writing

Probate Code Section 6120 (a)A will or any part thereof is revoked by any of the following: (a) A subsequent will which revokes the prior will or part expressly or by inconsistency.

Revocation By Physical Act

Probate Code Section 6120 (b)A will or any part thereof is revoked by any of the following: (b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.

Revocation By Physical Act

Harrison v. Bird The destruction of one duplicate original is a revocation of all the

duplicate original wills The court found that the physical destruction of the will did not

revoke it. Why? Different result in California?

Thompson v. Royall Why wasn’t it considered revocation by writing? Cancelling means mutilation of the writing itself

Any writing that does not touch the original writing is considered a new separate writing, and must meet the formality requirements

These case again demonstrates the courts presumption that the will is valid As a result strict compliance of a revocation statute is needed for the

revoking act to be valid.

Presumption Of Revocation

Probate Code Section 6124If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.

Presumption of Revocation

Lauermann v. Superior Court What is a duplicate original?

Only a duplicate of the original that satisfies the same formalities of the original will

In this case the duplicate was only a photocopy and not a duplicate original as intended by the legislature, therefore the presumption takes effect What if it was a holographic will?

Footnote 8 “It is as well to note that the statute clarifies that the presumption is one

affecting only the burden of producing evidence rather than the burden of proof.   It may therefore be rebutted by evidence showing that it is ‘equally probable’ that the will was destroyed inadvertently or without the intent to revoke it.”  

Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 “[W]hen the party against whom such a presumption operates

produces some quantum of evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by the presumption. The presumption disappears…”

Revival

RevivalDependent Relative Revocation

Revival

Probate Code Section 6123(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed. (b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.

Dependent Relative Revocation

LaCroix v. Senecal “Where the intention to revoke is conditional and

where the condition is not fulfilled, the revocation is not effective.” What condition was not met in LaCroix?

That the execution of a codicil which would be effective to continue the same disposition of her residuary estate

Estate of Alburn Which will is in effect: 1955 will, 1959 will, or no will?

Did the court find that Dependent Relative Revocation applied? Then why does the 1959 will is the proper one to

probate?

Restrictions on Power of Disposition

Right of Surviving Spouse to Community Property

Right of Omitted SpouseRight of Omitted ChildHomestead Family Allowance

Right of Surviving Spouse to Community Property

Community and quasi-community property is property that is owned by spouses together

Both spouses have equal claim to that property

Therefore, one spouse cannot gift the entirety of community property Example: Heather and Evan buy a house together

while married, and only Heather’s name is on the deed. Heather dies 2 years later and leaves the entire house to Paul the pool boy. Heather can only give Paul the pool boy her portion of

the community property. Therefore, Evan retains ½ of the house.

Right of Omitted Spouse

Probate Code Section 21610Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate: (a) The one-half of the community property that belongs to the decedent under Section 100. (b) The one-half of the quasi-community property that belongs to the decedent under Section 101. (c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

Right of Omitted Spouse

Probate Code Section 21611The spouse shall not receive a share of the estate under Section 21610 if any of the following is established: (a) The decedent's failure to provide for the spouse in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments. (b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence. (c) The spouse made a valid agreement waiving the right to share in the decedent's estate.

Right of Omitted Spouse

Probate Code Section 21612(a) Except as provided in subdivision (b), in satisfying a share provided by this chapter: (1) The share will first be taken from the decedent's estate not disposed of by will or trust, if any. (2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all beneficiaries of decedent's testamentary instruments in proportion to the value they may respectively receive. The proportion of each beneficiary's share that may be taken pursuant to this subdivision shall be determined based on values as of the date of the decedent's death. (b) If the obvious intention of the decedent in relation to some specific gift or devise or other provision of a testamentary instrument would be defeated by the application of subdivision (a), the specific devise or gift or provision may be exempted from the apportionment under subdivision (a), and a different apportionment, consistent with the intention of the decedent, may be adopted.

Right of Omitted Child

Probate Code Section 21620Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child shall receive a share in the decedent' s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument

Right of Omitted Child

Probate Code Section 21621A child shall not receive a share of the estate under Section 21620 if any of the following is established: (a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments. (b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child. (c) The decedent provided for the child by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements of the decedent or from the amount of the transfer or by other evidence

Right of Omitted Child

Estate of Mowry Adopted daughter from previous marriage was

omitted from holographic will Daughter doesn’t take under omitted child statute

because she was adopted before the last testamentary document was executed

Daughter has burden of proof to show that she was mistakenly omitted What does the court say about putting the burden of

proof on the proponent of the will? Why let the omitted child challenge the will at all?

Same reason, intent of testator

Homestead and Family Allowance

Homestead The court in its discretion may set aside a real

property for the use of the surviving spouse during their lifetime or for the duration of a child remains in minority, or any other restrictions of time or use the court deems proper

Family Allowance The court in its discretion may provide a surviving

spouse, a minor child, or a dependent adult child with reasonable funds necessary for the maintenance of that party during the estate administration

Bars To Succession

Felony MurderDivorceDisclaimerElder Abuse

Felony Murder

Probate Code Section 250 A person who intentionally and feloniously kills the

decedent is not entitled to take under intestate or testate succession or as a beneficiary of a trust. Nor can they be an executor or trustee

Divorce

Probate Code Section 6122(a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following: (1) Any disposition or appointment of property made by the will to the former spouse. (2) Any provision of the will conferring a general or special power of appointment on the former spouse. (3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian. (b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator's remarriage to the former spouse. (c) In case of revocation by dissolution or annulment: (1) Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator. (2) Other provisions of the will conferring some power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator. (d) For purposes of this section, dissolution or annulment means any dissolution or annulment which would exclude the spouse as a surviving spouse within the meaning of Section 78. A decree of legal separation which does not terminate the status of husband and wife is not a dissolution for purposes of this section. (e) Except as provided in Section 6122.1, no change of circumstances other than as described in this section revokes a will. (f) Subdivisions (a) to (d), inclusive, do not apply to any case where the final judgment of dissolution or annulment of marriage occurs before January 1, 1985. That case is governed by the law in effect prior to January 1, 1985.

Divorce

Probate Code Section 6122.1 (a) Unless the will expressly provides otherwise, if after executing a

will the testator's domestic partnership is terminated, the termination revokes all of the following: (1) Any disposition or appointment of property made by the will to the former domestic partner. (2) Any provision of the will conferring a general or special power of appointment on the former domestic partner. (3) Any provision of the will nominating the former domestic partner as executor, trustee, conservator, or guardian. (b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator establishing another domestic partnership with the former domestic partner. (c) In case of revocation by termination of a domestic partnership: (1) Property prevented from passing to a former domestic partner because of the revocation passes as if the former domestic partner failed to survive the testator. (2) Other provisions of the will conferring some power or office on the former domestic partner shall be interpreted as if the former domestic partner failed to survive the testator. (d) This section shall apply only to wills executed on or after January 1, 2002.

Divorce

Estate of Coleman In this case a pour over will was created that gave to

the trust The trustee of the trust was the former spouse of the

decedent Court found trust was revoked prior to death and

therefore trust gift lapsed However, the will provided that if the trust gift lapsed,

the contingent beneficiary would be a new trust which had identical provisions of the revoked trust• Court held that in the end it does not matter what capacity

the former spouse is in, she cannot take under the Probate Code

What if the former spouse is also a business partner that the decedent leaves property to?

Disclaimer

When a beneficiary refuses to take the property

Elder Abuse

Elder abuse includes physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.