Glossary of non-mbe ca wills and trusts
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- What are the four elements needed to establish testator was suffering from an insane delusion?
- 1) testator had a false belief;
2) that belief was the product of a sick mind;
3) there is no evidence to support that belief, not even a scintilla,
4) delusion must have affected testator's will.
- what is the consequence of finding an insane delusion?
- only that part of the will that was affected by the delusion is invalid. it will pass by intestate succession.
- What are the five elemnts of fraud?
- 1) There must be a representation;
2) of material fact;
3) known to be false by the wrongdoer;
4) for the purpose of inducing action or inaction; and
5) in fact induces the action or inaction desired.
- What is fraud in the execution and what results?
- Fraud in teh execution is when someone forges testator's signature to a will. Result: Will is invalid.
- What is fraud in the inducement and what results?
- Wrongdoer's representation affects the contents of testator's will.
Result: Only that part of the will affected by fraud is invalid. It can either go to residuary, thru intestate or constructive trust remedy.
- What is the consequence of fraud in preventing testator from revoking?
- The court will nto probate the will and the property will go to the heirs.
- What are the 4 elements for a prima facie case of undue influence?
- 1)susceptibility (any weakness of testator)
2) opportunity (wrongdoer had access to the testator)
3) active participation (wrongful act gets the gift)
4) unnatural result (the wrongdoer is taking a devise and would not normally be expected to).
- In what five special relationships will there be a presumption of undue influence?
- 1) attorney-client
4) clergy person-penitant
- What are elements for undue influence by presumption?
- 1) special relationship or confidential nature (CA)
2) active participation
3) unnatural result.
- What are the consequences for finding undue influence?
- 1) only that part of the will affected by the undue influence is invalid.
2) that part affected goes to residuary, intestate, constructive trust.
- What is statutory undue influence?
- CA law generally invalidates a donative transfer from a transferor (testator or settlor) to:
1) a person who drafted the instrument or
2) a person who is related to the drafter or
3) a person in fiduciary relationship to the testator adn who transcribes the will.
- what are the consequences of statutory undue influence?
- devisee does not take the gift but only an intestate share. the rest of the will goes to residuary, intestate or constructive trust.
- When you are invalidating a gift based on undue influence what 3 topics must you discuss?
- 1) prima facie
- If there is a mistake in content and words are left out, what remedy?
- none. that person is left out. courts will not rewrite a will.
- if there is a mistake in content and words are accidentally added, what result?
- the court may strike out the person's name because court isn't rewriting the will, it's just excising a part of it.
- IF there is a mistake in execution and testator mistakenly signs his will (thinking it's something else), what result?
- will is not probated because testator did not intend it to be his will.
- If there is a mistake in execution and there are reciprocal or mutual wills of a married couple, what result?
- the court may reform the will because it is equitable.
- If there is mistake in the inducement and a particular gift is made or not made based on testator's beliefs, what result?
- no relief unless the testator also mentions in the will what would happen but for the mistake.
- What are the consequences of mistake in description?
- If it is a latent ambiguity (on the face there is no problem), then you introduce parol evidence to establish ambiguity and also to establish testator's intent.
IF it is a patent ambiguity (ambiguity apparent on teh will) modernly no remedy.
But in CA, parol evidence is allowed for any kind of ambiguity to determine testator intent.
- When do you use dependent relative revocation?
- It allows a court to disregard a revocation caused by mistake.
- What is the rule for dependent relative revocation?
- 1) if testator revokes her will, or a portion thereof,
2) in the mistaken belief that a substantially identical will or codicil effectuates her intent,
3) then by operation of law,
4) the revocation of the first will be deemed conditional, dependent and relative to the second effectuating testator's intent.
5) if the second will does not effectuate testator's intent, the first (by pure legal fiction) was never revoked.
- For dependent relative revocation must the wills be substantiallly the same?
- What is CA's lost will provision?
- This provision states that a lost will or accidentally destroyed will can be probated if at least one witness testifies as to the terms of the will. Does not have to be an attesting witness.
- What is the pretermitted child rule?
- The child receives an intestate share of assets decedent owned at death plus the assets held in any intervivos trust. Other gifts must be abated or reduced.
- What are the four elements to incorporation by reference?
- 1) a document or writing;
2) the document or writing must have been in existence at the time the will was executed;
3) the document was clearly identified in the will;
4) testator must have intended to incorporate the document into the will. (if you establish 1-3, typically 4 will be implied by the court)
- What is a pour over will?
- THis means that part or all of the testator's estate is devised to the trustee of the inter-vivos trust, to be administered pursuant to the terms of that trust.
- HOw do you validate the pour over provision?
- 1) Incorporation by reference (a) a trust intrument (b) in existence when will executed (c) clearly identified in the will (d) testator intended to incorporate the trust into the will;
2) Independent significance (even without the will, we would have this intervivos trust so it is independent of the will);
3) uniform testatmentary additions to trusts act (which says as long as you have a valid trust existing before the will was executed, the pour over provision is valid by statute.
- What are the 4 elements for an attested will?
- 1) the will must be in writing. oral wills aren't recognized in CA.
2) the will must be signed by one of the following three people (testator, third person in testator's presence at at direction since incapacitated, conservator pursuant to court order);
3) the signing must be done in the presence of two witnesses both present at teh same time.
4) the witnesses understand that the instrument they sign is the testator's will.
NOTE: In CA, witnesses do not have to sign in presence of each other and don't need to sign in presence of testator. TEstator does not have to declare to teh witness "this is my will. Testator doesn't have to sign before witnesses. Signing anywhere on the will is okay in CA. And doesn't hav eto be one continuous transaction of signing (but no sig break). Also cannot sign after testator dies.
- What are the consequences of finding an interested witness?
- 1) will is not invalid but
2) there is a presumption of wrongdoing
3) if presumption is rebutted, no problem and can take gift.
4) if cannot rebut, she takes amount allowed by intestacy.
- What are the elements for a holographic will?
- a holographic will must be signed by the testator. (signature can be anywhere on teh will)
2) material provisions must be in testator's own handwriting. (gifts made, beneficiaries' names)
- Under what circumstances can a will be admitted into probate in CA?
- If it complies with formalities of execution of
1) CA law
2) the law of the place where the will was executed or
3) the law of the place of testator's domicile at time of execution.
- What are the elements for revocation by a physical act?
- 1) will must be burned, torn, cancelled, destroyed or obliterated (cancel-->cross out; obliterate-->erase)
2) testator must have the simulatenous intent to revoke
3) the act must be done either by testator or by some one in testator's presence and at his direction
- What happens when an interlineation is less than the cancelled provision in a holographic will?
- there is a valid new disposition because it's a holographic will.
- What is the rule for duplicate wills?
- If testator or someone in testator's presence at at his direction revokes by physical act oen of the duplicate originals, then the other duplicate is also revoked as a matter of law.
- can dependent relative revocation save a gift when a testator crosses out $1000 and interlineates $1,500 in a typed will?
- yes! DDR will save it because testator indicated he would want recipient to have at least $1000.
- In CA, can a will be automatically revivied?
- no. There is no automatic revival. testator must manifest an intent to revive.
- What are the three exceptions to the pretermitted child rule?
- 1) decedent's failure to provide for the child in any testamentary instrument was intentional and that intent appears on the testamentary instrument.
2) at the time of execution of the testamentary instrument, decedent had more children and devised substantially all of his estate to the parent of the omitted child.
3) the decdednt provided for the child by transfer outside the testamentary instrument with intention to be in lieu of will provisions
- What is the definition of an omitted spouse?
- A surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for in any testamentary instrument.
- What are the consequences of finding an omitted spouse?
- spouse receives a statutory share of assets owned at death plus the assets held in any intervivos trust:
1) 1/2 of the community property
2) one half of the quasi-community property
3) a share of the separate property equal in value to what she would have gotten if no will at all (but not less then 1/2 sp).
Other gifts must be abated.
- WHat are the three exceptions to the omitted spouse doctrine?
- 1) decedent's failure to provide for spouse was intentional and appears from the testamentary instrument.
2) decded provided for spouse by transfer outside of testamentary instrument in lieu.
3) omitted spouse sighs a waiver.
- What are the 3 elements for a waiver for purposes of the omitted spouse?
- 1) waiver must be in writing, signed by the waiving spouse before or during marriage; and
2) full disclosure by decedent of decedent's finances and
3) independent counsel by waiving spouse.
- What is ademption by extinction?
- A gift fails because testator did not own the property at testator's death.
In CA, there is no ademption by extinction in CA in the following situations:
1) securities changing form: becuase of mergers, stock dividends, etc. (why? corp changed stock, not testator)
2) conservator sells off assets. beneficiary takes net sales. (why? conservator sold it, not testator)
3)eminent domain award, casualty award, or an installment sale of property in which testator holds deed of trust as security for the sale. In CA there is no ademption by extinction with respect to proceeds and payments after testator's death. but before death, see if you can trace.
4) in all other situations, try to classify as general and failing that try to trace.
- What is ademption by satisfaction?
- testator gives the beneficiary an intervivos down payment on a devise (only for general gifts).
How to establish:
1) will itself provides for a deduction of the intervivos gift.
2) testator declares in a contemporaneous writing that the gift is a satisfaction
3) beneficiary acknowledges in a writing at any time the satisfaction
4) property given in satisfaction is the same property that is subject of a specific gift. it is both ademption by satisfaction and extinction.
- What is an advancement?
- it is an intervivos down payment made by an intestate to an heir apparent. a satisfaction deals with a testacy situation whereas advancement deals with intestacy.
How to establish:
1) intestate declares in a contemporaneous writing it is an advancement
2) heir acknowledges in a writing gift is an advancement.
HOw to value: value is conclusive or value at the FMV at time heir came into possession.
- What are the five alternative ways to have a contract to not revoke in CA?
- 1) the will or other instrument states material provisions of the contract
2) there is express reference in teh will or other instrument to a contract
3) there is a writing signed by the decedent evidencing a contract
4) clear and convincing evidence of agreement enforceable in equity. (estoppel)
5) clear and convincing evidence of an agreement between decedent and third person for the benefit of the claimant that is enforceable in equity.
- What is a joint will?
- the will of two or more people on one document. when first person dies it is probated and then probated again when second person dies.
- what is a mutual will?
- the separate wills of 2 or more people which are reciprocal.
- what is a joint and reciprocal will?
- reciprocal provisions on one instrument.
- What is the widow's election?
- arises when testator attempts to dispose of more than 1/2 community prperty or 1/2 quasi community property. in such case, widow can either take under teh will OR can take against the will (meaning take statutory right to 1/2 cp and 1/2 sp)
- Is an intervivos transfer by decedent of quasi community property to a third person allowed without consideration?
- yes. survivor had mere expectancy in qcp and not a property interest.
exception: when transfer is deemed illusory because decedent retained some control or interest over property (such as ownership interest, use or co-tenancy)
- What is teh intestate scheme in terms of order of taking when there is no surviving spouse?
- 1) issue
3) issue of parents
- When do you use "per capita" and "per capita with representation"?
- whenever issue take by intestacy or if a will or trust provides for issue to take without specifying the manner they take ISSUE OF THE SAME DEGREE TAKE PER CAPITA (or equally in their own right).
Issue of more remote degree take "per capita with representation". Make the distribution at the first level someone is living and give shares to all living people at that generation and deceased members who leave issue.
- When do you use "strict per stirpes" distribution?
- 1) you make the distribution at the first generation or first level, even if everyone is dead, so long as they left issue.
- What are the requirements for a stepchild or foster chidl to take as if adopted?
- 1) relationship began during child's minority;
2) it continued throughout the parties' lifetimes; and
3) it is established by clear and convincing evidence that the steppaprents or foster parent would have adopted but for legal barrier.
- what is equitable adoption?
- aka adoption by estoppel. arises when the parties hold themselves out as parent and child.
- What is the rule of lapse?
- if beneficiary does not survive testator, beneficiary's gift lapses or fails. the gift then falls into the residue if there is one. otherwise by intestacy.
- How does CA's anti-lapse statute work?
- applies only if the devisee who predeceased the testator was kindred of the testator and this predeceased devisee leaves issue.
Note: for the anti-lapse statute to apply devisee must be kindred of the testator or testator's spouse/domestic partner--but devisee cannot be the spouse or domestic partner.
anti-lapse applies to class gifts wills and revocable trusts
- for an heir to take must the heir survive the intestate and for how long?
- must survive the intestate by 120 hours.
- What is the rule for an increase during testator lifetime in regards to stock dividends or splits?
- stock dividends or splits paid during testator's lifetime go to the beneficiary if the stock is owned by the testator at testator's death. doesn't matter whether shares are specific or general.
- what is the rule regarding increases after testator's death and during probate?
- regarding specific devises, all increase goes to beneficiary. (stock dividends, stock splits, rents, cash dividends, interest on indebtness).
As a general rule, general devisees do not receive any increases.
- What is teh order of abating property for omitted children and omitted spouses/domestic partners?
- 1) first abate property not passign by decedent's will or revocable inter-vivos trust
2) then abate from all beneficiaries of testator's will and revocable inter-vivos trust pro rata in proportion to teh value of teh gift received.
- What is the roder of abatement for payment of general debts of decedent?
- 1) intestate property
2) residuary gifts
3) general gifts to non-relatives;
4) general gifts to relatives
5) specific gifts to non-relatives
6) specific gifts to relatives
- what is the defintion of exoneration?
- debt is extinguished.
in CA there is no automatic exoneration. the devisee takes the specific gift subject to the encumbrance, unless the testator's will states that the specific gift is to be exonerated.
A general direction to "pay all my debts" is not sufficient to exonerate.
- what is a gift causa mortis?
- a gift made in contemplation of imminent death. only personal property (no real property).
- how do you make delivery of a gift causa mortis?
- three forms are possible:
1) actual delivery/manual delivery--corpus is itself transferred to donee.
2) symbolic delivery--something representative of the corpus is given to the donee.
3) constructive delivery--when donor has done everythign possible to effectuate delivery and there is no issue of fraud or mistake.
- if donor survives the peril, can a gift causa mortis be revoked?
- it is revoked by operation of law.
- What is the definition of a private express trust?
- A fiduciary relationship with respect to property whereby one person, the trustee, holds legal title for the benefit of another, the beneficiary, and which arises out of a manifestation of intent to create it for a legal purpose.
- what property may be used as corpus for a trust?
- any presently existin ginterest in property that can be transferred can be the corpus of a trust.
- who can be the beneficiary of a private express trust?
- any ascertainable person or group of people can be the beneficiary of a private express trust.
1)corporations count and so do unincorporated associations.
2) a child conceived when interest was reated and later born is ascertainable.
- will a court allow a trust to fail solely because there is no trustee or a trustee refuses to serve?
- no, court will apoint a trustee or teh settlor's estate will hold title until a trustee is found.
- Can you manifest an intent for a trust to arise in teh future?
- no. there must be a present manifestation of trust intent made by the settlor.
- what types of words are required to create a trust?
- mandatory words (not precatory words of hope, wish, desire)
but precatory words plus parol evidence may equal a trust.
- do trusts of personal property have to be in writing?
- no only real property trusts must adhere to statute of frauds.
- for a trust created to take effect at settlor's death, what must the settlor comply with?
- settlor must comply with the statute of wills (local probate code) because he is really acting as a testator.
- for a trust to take effect during his lifetime, what are two ways settlor can accomplish this?
- 1) transfer in trust (a third person is trustee and settlor executes a deed transfering title to trustee or there is delivery of personal property to trustee). OR
2) declaration in trust: settlor herself is trustee. for real property, there must be a writing indicating settlor is also trustee. for personal property, there is no issue of delivery and we look only to see if there is manifestation of trust intent in declaration.
- if trust becomes illegal after creation, what will a court do?
- court will transfer the property back to settlor if he is alive and if not to settlor's estate.
- if a trust is illegal at creation, what will the court do?
- cour tiwll either try to excise the bad from teh good or invalidate the trust (let settlor keep it) or let trustee keep property to punish settlor.
- how do you create a trust?
- 1) manifestation of trust intent
2) which can be done at testator's death by will or
3) during settlor's lifetime by declaration of trust or by transfer of trust
4) of a presently existing interest in property that can be transferred
5) for a legal purpose.
same way for private express trust and charitable trust.
- does the common law rule against perpetuities apply to charitable trusts?
- no. it can last forever.
- what does cy pres mean?
- "as nearly as possible"
if a settlor manifests a general charitable intent but the mechanism for effectuating that intent is not possible or practicable, the court can modify the mechanism cy pres to effectuate S's general charitable intent.
Can only be used for general gifts and not specific (specific gifts fail). to determine this, introduce both extrinsic and intrinsic evidence (the trust instrument).
only the court invokes cy pres. not the trustee on his own. he can only petition the court.
- what is an honorary trust?
- a trust with no ascertainable beneficiary and confers no substantial benefit upon society. it is simply a goal of settlor and trustee is not required to carry it out but has poewr to and is on his honor only.
- what is a totten trust?
- a totten trust is also referred to as a tentative bank account trust, whereby the named beneficiary takes whatever is left in the account at the death of the owner of the account.
- can property interests be voluntarily aliented by settlor?
- yes. proeprty interests can be sold or transferred. that is the nature of property.
- can property interest be involuntarily alienated (attached by creditors after proper legal proceedings)?
- yes. that is the nature of property.
- how does a spendthrift trust work?
- the beneficiary cannot transfer his right to future payments of income or principal and creditors cannot attach the beneficiary's right to future payments of income or principal.
- how does a support trust work?
- the trustee is required to use only so much of the income or principle as is necessary for the beneficiary's health, support, maintenance or education.
- how does a discretionary trust work?
- in a discretionary trust, the trustee is given sole and absolute discretion in determining how much to pay the beneficiary if anything and when to pay if ever.
- Can beneficiary ever transfer his interest, his right to future payments, notwithstanding the discretionary trust provisions?
- on the one hand no: beneficiary cannot voluntarily transfer his right to future payments because the beneficiary may not even get anything.
but on teh other hand, if in fact there was an assignment, then the assignee steps into the shoes of the beneficiary. because the beneficiary could not force payment by trustee, neither can the assignee. but if trustee has notice of the assignment and does decide to pay, then the trustee must pay the assignee or be held personally liable.
- can creditors ever attach the beneficiary's right to future payments, notwithstanding the discretionary trust provisions?
- on the one hand, creditors cannot attach the beneficiary's right to future peyments since there is nothing to attach.
on the other hand, if the trustee has notice of the debt and creditor's judgment against the beneficiary, and trustee does decide to pay, he must pay the creditors or be held personally liable.
- how does a resulting trust arise?
- 7 situations:
1) when a private trust ends by its own terms and there i no provision for what happens next (presume settlor wants it back);
2) when a private express trust fails because there is no beneficiary (presume setlor wants it back);
3) when a charitable trust ends because of impossibility or impracticability and cy pres cannot be used (goes back to settlor);
4) when a private trust fails after creation because trust becomes illegal.
5) when tehre is excess corpus in a private express trust.
6) when we have a "purchase money resulting trust" (if there is a close relation, rebuttable presumption that it was a gift);
7) semi-secret trusts: arises when the will makes a gift to a person to hold as a trustee, but does not name the beneficiary. (goes back to settlor, estate or residuary devisees if any or heirs at law).
- what is a constructive trust?
- a remedy to prevent fraud or unjust enrichment. not really a trust.
- what situations will a constructive trust arise?
- 1) where a trustee of a private express trust or a charitable trust makes a profit because of self dealing (turn profits over to beneficiaries);
2) with respect to the law of wills, when there is fraud in the inducement or undue influence (court can deny teh will and make heir constructive trustee);
3) secret trusts in the law of wills (the will on its face makes a gift outright to A, but gift is given on basis of an oral promise by A to use the property for the benefit of B. (parol evidence is admissible to show identity of beneficiary)
4) oral real estate trusts (breach of promise--from four corners of teh deed A seemingly owns property in fee simple. but A can raise SOF as defense. A can't use SOF as a defense when there is a fiduciary relationship between A and S, if there was fraud in teh inducement or if there was detrimental reliance by intended beneficiary.)
- what are the trustee's duties and power?
- powers: has all enumerated powers and implied powers which help carry out trust purpose (like power to sell trust property, power to incurr expenses, power to lease, power to borrow)
1) duty of loyalty (no self dealing);
2) duty to invest (state lists which trustee must follow, common law prudent person test as a reasonably prudent person while investing his own property to maximize corpus, Uniform prudent investor act--measure performance in context of entire trust portfolio);
3) duty to earmark (label trust property as trust property--if fail to earmark, trustee is personally liable for loss)
4)duty to segregate (trustee cannot commingle his own personal funds)
5) duty not to delegate (can rely on professional advisers but cannot delegate decision making authority)
6) duty to account (give beneficiaries statement of income and expenses regularly);
7) duty of due care (trustee must act as reasonable person dealing with own affairs)
- what are the remedies for breach of duties by trustee?
- 1) damages
2) constructive trust remedy
3) tracing and equitable lien on property
4) ratify the transaction if good for beneficiary
5) remove trustee.
LOOK FOR 3-4 duties breached. you never just get 1 or 2. Also always talk about duty of care.
- What is the liability of trustee to third persons?
- if the other person to the contract, the promisee, knows that the trustee is entering into the contract in his representative capacity, then the trustee must be sued in his representative capacity. trustee's personal assets not at stake.
in tort, if trustee is sued in his individaul capacity and is personally liable for torts only if the trustee is personally at fault (acted negligently or committed a tort).
- Can settlor modify the trust?
- yes if settlor expressly reserves the power to modify the trust. settlor also has power to modify if he has the power to revoke.
- can a court modify a trust?
- yes regarding charitable trusts and the cy pres power: changing the mechanism to furhter settlor's general charitable intent.
court can use it's deviation power. court is not changing beneficiaries. 2 elements required:
1) unforseen circumstances on the part of the settlor, and
2) necessity (to preserve the trust need to deviate)
- when does settlor have teh power to revoke?
- to retain the power to revoke, the settlor must expressly reserve teh power in teh trust instrument.
minority says settlor has power to revoke unless expressly irrevocable.
- What are teh three ways an irrevocable trust can terminate prematurely?
- 1) settlor and beneficiaries all agree to terminate.
2) all beneficiaries agree to terminate and all material purposes have been accomplished. (equity will not carry out minor purpose)
3) by operation of law: passive trusts and statute of uses (if trust is passive and trustee has no active duties and is just holding legal title, then statute of uses says beneficiaries get to keep it)
- What kind of income and expenses may be allocated to a life tenant?
- 1) cash dividends
2) interest income
3) net business income.
life tenant's interest pays for the following expenses
1) interest on loan indebtedness
3) minor repairs.
- what kind of income and expenses may be allocated to the remainderman?
1) stock dividends
2) stock splits
3) net proceeds on the sale of trust asset.
remainderman pay the following expenses:
1) principal part of loan indebtedness
2) major repairs or improvements
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