california bar exam outline - wills

California Bar Exam Outline - Wills

This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Wills

  1. Is there a valid will?

  1. Capacity

  1. Age 18 years
  2. Legal capacity: Ability to understand END:

  1. Extent of his property  Natural objects of his property Nature of disposition Not suffering from insane delusion (false or irrational belief; which is the product of a sick mind; unsupported by any evidence; that affected T�s will).
Present intent

  1. Question of fact determined by examining will and circumstances.
  2. Query: Did T intend to make disposition of property effective at death?
  3. Conditional will is ok, but courts may ignore conditions. Extrinsic evidence to show condition is ok.

  1. Execution

  1. Writing
  2. Signature of T (by self or with help of another at T�s direction and presence)
  3. In the simultaneous conscious presence of two competent witnesses, who signed the will with the understanding that it was T�s will. Witnesses need not be disinterested, but if interested, rebuttable presumption that W obtained his gift by fraud or undue influence. If presumption not rebutted, W takes under intestacy (if anything) but not gift.

  1. Holograph

  1. Writing
  2. All material terms handwritten by T
  3. Signed anywhere by T
  4. No date required, but proponent must show will is last in time, and if placed in issue, that T was not incapacitated when will was drafted.
Does the document constitute a will?

  1. Integration

  1. Physical presence of all papers at time of execution
  2. Intent to integrate
  3. Presumption that requirements satisfied arises from: Physical connection of papers; natural flow of paragraphs; recitations in attestation clause, sequence in page numbering.

  1. Incorporation by reference

  1. Incorporates papers mentioned in will but not physically present at time of execution.
  2. Requires that the incorporated document be in existence at time will was executed; referred to explicitly by the will; and intent to incorporate into overall testamentary plan.

  1. Codicil

  1. Testamentary instrument executed after will with all formalities of a will, with intent to modify, alter or amend will.
  2. Will takes on date of the codicil, unless contrary to T�s intent.
  3. Valid codicil making reference to prior invalid will validates will.

  1. Acts of independent significance

  1. Reference to extrinsic acts or events, present or future. Allows something to be named or changed (i.e. "I lieave all my property to the persons living in my house at my death.").
  2. Independent legal significance: Must be one which ordinarily has some non-testamentary utility or function, and has sufficient legal significance apart from the will.

  1. Pour over trust

  1. Attempted testamentary gift to pre-existing trust is valid either as incorporation of trust into will by reference, or independent significance of establishing trust.
  2. Subsequent post-will modification of trust: Courts uphold gift as modified.
Defenses to the will

  1. Fraud

  1. Misrepresentation of material fact known to be false for the purpose of inducing action or inaction which does in fact induce action or inaction.
  2. Execution: T doesn�t know instrument was will. Entire will is void.
  3. Inducement: T is misled by another�s fraud as to the provision of the will. Only the infected parts of the will are struck.
  4. Failure to revoke: T requested revocation, but tortfeasor fails to do so.
  5. Fraudulent prevention of will: T is lied to to prevent him from writing a will.
  6. Constructive trust: Where unjust enrichment or other injustice would result, court can probate will and force wrongdoer to serve as constructive trustee for beneficiary.

  1. Mistake

  1. Execution: Mistakenly signing a will does not create a will because of lack of intent.
  2. Inducement: Disposition based on mistaken beliefs is valid � no relief, unless mistake appears on face of will.
  3. Content: No relief for scribner�s error because granting relief would cause a lot of contests.
  4. Description: If ambiguous, no parole evidence admissible to determine T�s intent or clarify.
  5. Living children can take under prior will or intestate share if mistakenly believed to be dead or non-existant.
  6. Subsequent will or codicil: Dependent relative revocation may apply if prior will is substantially identical and consistent with T�s intent.

  1. Undue Influence

  1. Burden on party asserting.
  2. Elements: Indicia of undue influence showing that T�s intent was overborne at time of execution.

  1. Susceptible T
  2. Opportunity to exercise undue influence
  3. Disposition to exercise undue influence (D had something to gain)
  4. Unnatural result

  1. Rebuttable presumption of undue influence arises when:

  1. Confidential or fiduciary duty or relationship exists.
  2. Active participation in will preparation or execution by wrongdoer.
  3. Undue benefit to wrongdoer.

  1. Effect: Will entirely invalid to the extent affected by undue influence.
Revocation, republish, revived; doctrine of dependent relative revocation

  1. Revocation

  1. Physical act: Destroying, obliterating, canceling, burning, defacing of T�s signature, or tearing; coupled with simultaneous intent to revoke (accident not enough). Can be performed by T or at T�s direction.

  1. Partial cancellation: Cannot increase non-residuary gift or change beneficiaries, but can decrease gift. Intentional additions effective if will was holographic and change is handwritten, or if addition qualifies as holographic codicil.

  1. Subsequent instrument: Express revocation of prior will (extends to codicils), or implied from an entirely inconsistent instrument (if not inconsistent, then both are read together with 2nd controlling any inconsistencies).
  2. Law

  1. Post-will marriage: Revocation as to surviving spouse�s intestate share, unless T has provided for spouse outside will; failure to include spouse was intentional; or surviving spouse executed a valid waiver of her right to share in estate (must be in writing, signed by spouse, and either full and fair disclosure with independent counsel, fair waiver, or spouse did or should have known about spouse�s assets). Intestate share taken from residuary, then apportionment from other devisees.
  2. Post-will child: Will revoked as to that child (child gets intestate share), unless T provided for child outside will, failure to include child was intentional (appears on face of will), or T devised substantially all of the estate to child�s other parent.
  3. Divorce: Revoked by dissolution unless will provides otherwise.

  1. Ademption: Specific devise of property not owned by T at death is revoked and beneficiary takes nothing. For stock, executor must purchase it if never owned; beneficiary takes all if stock splits. Devisee has right to insurance proceeds or sale price if the property was destroyed or sold.
  2. Satisfaction: General or specific express legacy is satisfied, and thus revoked.
  3. Advancement: Advance intervivos payment is deducted from heir�s share if that is the intent of T expressed in written document. If advance exceeds share, heir gets nothing but doesn�t have to refund difference.
  4. Restriction: Person who feloniously and intentionally killed T may not inherit from T. Estate passes as if killer predeceased T.

  1. Revival

  1. CL: Revocation of subsequent will revives prior will.
  2. CA: Unless evidence from circumstances of revocation of 2nd will or from T�s declarations, revocation of later will does not by itself revive prior will. Prior will must be re-executed or re-published.

  1. Republication: Revoked will still physically in existence may be validated by re-execution or by using validly executed codicil which incorporates will by reference.
  2. Dependent relative revocation (DRR): If T cancels will incident to attempted substitution which fails, it is presumed that revocation is conditional on effectivness of new disposition, and that if W2 is invalid, W1 is revived. W1 must closely approximate T�s intent.
K to make will

  1. Look to K law to see if K is valid.
  2. K must be established by provision stating material terms of K, express reference in will to K, and writing signed by T evidencing the K.
  3. Requirements: Written K (oral OK if part performance), revocable until death of one party (at which point K is irrevocable).
  4. Joint will is executed on same paper, intended to be will of each. Mutual will is separate wills by 2+ persons containing reciprocal benefit provisions.
Construction rules

  1. Preference for passing property to natural objects of T�s bounty.
  2. Extrinsic evidence permitted to resolve ambiguities, but T�s declaration not admissible
  3. Children: Adopted treated as natural, and biological parents and relatives are severed unless they live together or adoption was by spouse of natural parent. Foster children treated as adopted children if parent would have adopted but for some legal barrier. Illegitimate children may inherit from mother only, but not father unless paternity established by marriage, acknowledgement, or court decree of paternity.
  4. Lapse: Beneficiary must survive T, or gift passes by residual or instestacy. Issue of deceased take by right of representation if blood relative of T or T�s spouse, unless will provides otherwise. Class gift divided among class alive at time T dies.
  5. Abatement: Insufficient property to cover all claims. Express abatement provision in will controls, if none, take from intestate property, then residuary estate, then all gifts reduced proportionatly. Gifts to blood relatives and spouse abates last.
  6. Gifts: Gifts perfected by delivery, but motivated by fear of impending death, are revocable subject to claims of creditors, effective as non-probate transfer if unrevoked at death, and automatically terminate if T lives.
  7. Increases in value of devise: Stock split goes to devise; dividends go to owner on record date; profits, rents and interest before death go to residual estate and devisee after death.
  8. Federal tax is prorated among all beneficiaries.
  9. Beneficiary debt: Administrator may reduce devise by whatever amount devisee owed to T even if debt barred by SOL. N/A where beneficiary takes under anti-lapse statute.
  10. Uniform Simultanious Death Act: When two people die at the same time, and order of death cannot be established, the property of each decendent is treated as if he predeceased the other. If insured and beneficiary dies, beneficiary predeceases insured. Devise conditional on beneficiary surviving another beneficiary and can�t determine if one did survive the other: Property divided equally as if beneficiary had survived other beneficiaries. Under UPC, beneficiary who does not survive T by 120 hours is treated as if predeceased T.
Intestate succession

  1. Community property state

  1. C/P and Q-C/P passes to spouse
  2. Decedent�s S/P: Spouse takes 1/3 if D survived by 1 child, 1 child + issue of deceased child, or issue of 2+ deceased children. Spouse takes � if D survived by only 1 child or issue of deceased child, or no issue, but parent or sibling. If none of the above, spouse takes all.
  3. If spouse does not survive, remaining share passed to (in order): Issue (children, grandchildren, etc), decedent�s parents, siblings, grandparents or issue of grandparents, issue of predeceased spouse, next of kin in equal degree, parents of predeceased spouse or their issue, state.

  1. Separate property state

  1. If spouse survives, she takes 1/3 (if descendants exist) or more (no descendants) of estate, and issue take remainder. If no issue, spouse takes all. If will exists, spouse may elect to take her statutory share (1/3 or more) instead of taking under the will. Statutory share paid under abatement.
  2. If spouse does not survive, estate goes to children, then grandchildren by representation if decedent�s child is deceased. If no issue, estate goes to decedent�s parents.

  1. General principles

  1. Per capita: If surviving issue are all of the same degree, they take equally.
  2. Right of representation: If issue are of unequal degree, they take by right of representation.
  3. Next of kin: Look to degree of kinship, and if relatives are all of same degree but have different ancestors, those who claim through ancestor nearest to D takes to exclusion of others.
  4. If descendants in nearest generation to D have died, CA D�s estate is divided equally in the generation closest to T where a survivor exists, and more remote generations receive share by right of representation. Under Pure Per Stirpes, D�s estate divided into equal shares in generation closes to T regardless of living or dead, and remote generations take by right of representation.
  5. CA exception for property of predeceased spouse: If D owns real property, and predeceased spouse died more than 15 yrs before D, or personal property worth $10K or more (where predeceased spouse died more than 5 years before D) which was obtained from predeceased spouse, and D dies without spouse or issue, the property passes to the heirs of the predeceased spouse.
Conflict of laws

  1. For personal or intangible peroprty, law of D�s domicile applies. For real property, law where land is located applies.
  2. Out of state will is valid and may be probated in state under the Uniform Execution of Foreign Wills Act if executed under the law of the jurisdiction, the law of state where executed, law of place of T�s abode or domicile, or law of T�s domicile at death.

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