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Wills 06

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Terms

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Terms and Definitions:

in CA "Issue" means all linear descendants
Issue
terms and definitions:

i. Die w/out a will
ii. Portion of the will or all of the will is invalid
iii. Statute of decent and distribution
1. Personal property – goes to next of kin – distributes
2. Real property – goes
intestacy
terms and definitions:

Die w/ a valid will
testate
terms and definitions:

personally appointed to oversee the dead persons affairs. Inventory the assets, manage the assets during administration, receive pay creditor’s claims like taxes, use a clear titlte to the property, distribute remainin
personal representative
terms and definitions:

executes the will. If there is no will then the personal representative that does the estate is the administrator.
executor
terms and definitions:

any amendment to a will. A document which in and of itself adds, supplements, subtracts, alters, or revokes provisions in an existing will
codicil
terms and definitions:

way to pass along property w/out going through probate
i. Trusts, IRA’s, Life insurance
will substitute
terms and definitions:

petition to a court to review a will
i. Functions of probate: Gathering assets; paying off creditors; distributing assets Clearing title
probate
terms and definitions:

person that dies leaving a will
testator
terms and definitions:

gift of real estate
devise
terms and definitions:

person receiving the devise
devisee
terms and definitions:

gift of personal property
Bequest or legacy
terms and definitions:

person receiving the bequest
legatee
terms and definitions:

i. is all property acquired by married people during marriage while living in the state and property acquired by the married couple while living in another jurisdiction--the Exception is real property (for real property
community property
terms and definitions:

i. If living in a state that doesn’t have a community property system and buy something then move to a community property state and die-then personal property will be considered community property (Exception if own rea
quasi community property
terms and definitions:

i. any property not community property or quasi community property is separate property (anything not bought by married people within the state--Ex. stuff bought before married)
seperate property
terms and definitions:

i. Ex. the person's who would be the heirs of A (if A died) are not the heirs of A--they are the heirs apparent
heirs apparent
terms and definitions:

i. Statute of Uses – precursor to modern law of trusts. Did not allow the devise of land.
ii. Statute of Wills – Modern law of wills, allows the devise of real property.
1. Required a writing, but no signat
american probate law
into to estate planning:

i. Shapira v. Union National Bank - A father conditioned his son receiving his inheritance on the son marrying a jewish girl whose both parents are jewish. Son contested the will claiming it was Unconstitutional (viol
the power to transmit property at death
intro to estate planning:

1. Ct will consider societal interests when deciding whether to enforce the destruction of property designated in a will and courts usually will not uphold conditions to detroy property in a will, but they will do a b
destruction of your property after death
Into to Estate Planning:

is a ct proceeding that administers assets by one of 2 means:
1. Will; or
2. Intestate (a default scheme-statute decides how property will be distributed)
probate
intro to estate planning:

1. Collect and Distribute property
It distributes the decedents property to those intended after creditors are paid
2. Protects Creditors (by requiring payment of debts)
3. Clear Title (It provides evi
3 main functions of probate
intro to estate planning:

applies to property that has passed under an instrument other than a will, which became effective before death
Non probate
intro estate planning:

1. Property held in joint tenancy
a. when one owner dies the other becomes the owner of the
whole property---only need a death certificate to prove this
2. Life insurance
a. a private contract to pa
Non- Probate: 4 principal Categories
intro to estate planning:

after probate is opened
Non Probate:

Probate Procedure
intro to estate planning:

a. If will names the representative they are called an Executor
b. Is not named in will, then called an Administrator
i. Administrator must post a bond (but will can waive the requirement of a bond)
ii.
Non Probate: Probate Procedure

First you have a personal representative appointed to oversee the winding up of the decedent's affairs.
intro estate planning:

a. Inventory assets (stocks, bonds, real estate) and debts (creditors)
b. Receive claims from creditors(waiting period to protect creditors)
i. will sell assets to get cash to pay debts
ii. pays taxes
Non Probate: Probate Procedure:

representative responsibilities
intro to estate planning:

a. Formal is judicial determination after notice to interested parties
b. Informal does not require notice to interested parties
c. No proceeding formal or informal may be initiated more than 3yrs from the d
Non Probate: Probate Procedure:

Formal and Informal Probate
Intro to Estate Planning:

a. Statutory period which creditors must make claims or else be barred for waiting to long
b. Some state have a Family Protection Statute which sets aside a certain amount of cash, house or both-so creditors cant
Non Probate: Probate Procedure:

Non Claim Statutes
intro to estate planning:

i. Simpson v. Calivas: P is the beneficiary of his fathers will that D (atty) was hired to draft. P is suing for malpractice. Was the life estate for step mom just the house or all the decedents land and buildings use
Professional Responsibility
Intro to estate planning:

ii. Hotz v. Minyard: D’s father (owned 2 car dealerships) had a will drawn up. The father later went back and had a 2nd will drafted. D also used the same lawyer for her own purposes –she asked about the will but
Professional Responsibility case law
intro to estate planning:

1. “Pay off just debts” is not specific-does this include a mortgage—if yes then the estate must pay off the mortgage before dividing any property
2. have a back up executor if 1st one dies
3. address
estate planning dilemmas: be specific regarding what you want to happen
Intestate Succession:

Whenever a person does not make a Will or dispose of all of their property by Non-Probate Transfers they are accepting intestacy laws as their estate plan.
1. No will
2. Partial or total will failure (if have a
Intestate
intestate succession:

to carry out the probable intent of the parties
intesate public policy
intestate succession:

(personal property follows the person, real property does not)
1. - Follow the law of the state which the decedent was domiciled at death
2. Personal Property: the law of the state where decedent was domiciled a
intestacy general rule
intestate succession:

if will doesn’t govern all the property you have when you die
partial intestatcy
intestate succession:

1. Surviving Spouse
2. If no spouse then to Issue (children)
3. If no issue then to Parents
4. If no parents then issue of parents (siblings)
5. If no issue of parents then to grandparents
6. If
priority distribution guidelines
intestate succession:

(tells you what percentage of the pie an individual in a class above gets
moder per stirpes
intestate succession:

i. Find the first generation that has a living member in it
ii. Divide the property up into as many shares as there are in that generation
1. Living members; or
2. Deceased members leaving surviving issue
moder per stirpes 3 steps
intestate succession:

1. Then the spouse inherits the other half of the decedents community property
2. If One Child or issue of a child: then wife gets 50% of separate property and issue gets the other 50% -6401(c)(1)
3. If no issue
share of surviving spouse:

if spouse dies intestate
intestate succession:

(If 2 people die in the same incident how do you prove who survived who)
share of surviving spouse:

simultaneous death
intestate succession:

1. A person succeeds to the property of an intestate or testate decedent only if the person survives the decedent for an instant of time.
share of surviving spouse:

simultaneous death
intestate succession:

Ct held for D, because there was sufficient medical evidence to show that S died 3 days before T. Only had to show by preponderance of the evidence (any evid indicating she survived).
simultaneous death:

evidence that one spouse outlived the other
intestate succession:

Unless it is CLEAR that one spouse predeceased the other--then the Default Rule is that each spouse predeceased the other—so each spouses heirs will get their portion of the property
simultaneous death
intestate succession:

(applies to comm. prop and quasi comm.. prop)
a. Must show clear and convincing evidence that one spouse survived the other
b. If not—then property distributed as if each spouse predeceased the other (the wife
simultaneous death, CAlifornia Law
intestate succession:

1. Ancestors – parents
2. Collateral kindred (next of kin)– all persons related by blood to the decedent but who are not descendants or ancestors-(these are collateral relatives--more distant than GP's or GP's i
shares of ancestors and collaterals:

Relatives
intestate succession:

1. Using the table of consanguinity you count steps up from the decedent to the nearest common ancestor of the decedent and the claimant and then count the steps down to the claimant. The total number of steps is the degr
shares of ancestors and collaterals:

Degree of Relationship
Intestate Succession:

1. Find out who is the lowest number of degrees away from the person who died (see chart p79)
2. If you have 2 relatives that are next of kin -the one who is more related takes to the exclusion of the other
a. E
shares of ancestors and collaterals:

Rules that apply to next of kin
intestate succession:

3. If a tie-breaker between next of kin--whoever is related by a closer ancestor takes
a. Ex. grandchild of great grandparents takes over child of great grandparents (a great aunt/uncle)
b. BUT if equal degrees
shares of ancestors and collaterals:

Rules that apply to next of kin
intestate succession:

1. A will cannot state so and so receives nothing, violates statutes. Must distribute entire estate to others to disinherit. If portion of will invalid or entire will then person may be able to receive by intestacy.
shares of ancestors and collaterls:

Negative disinheritment
intestate succession:

a. Child that is born after the death of the father inherits (if child conceived before father dies then they inherit)
b. CA presumes that the child is legitimate heir if born within 280 days. This is a rebuttable pr
transfers to children: posthumous children:

Child conceived before death of father
intestate succession:

a. Ex. H freezes his sperm and dies then W uses sperm to have child (ct says there is a problem of whether they wanted you to take from their estate)
i. CPC 6453 says we know you inherit from your natural parent (but
transfers to children; posthumous children:

child conceieved after death of father
intestate succession:

1. CA adoption severs the relationship between the adopted child and the natural parent but creates a relationship with the adopted parents and the child. There are exceptions.
transfers to children:

adopted chldiren
intestate succession:

under CA law adopted children are allowed to inherit from natural parents family if:
i. They lived with the parent at some time before he died (Ex before they were adopted)--6451(a)(1)
ii. They would have lived
transfers to children:

adopted children exceptoins
intestate successoins:

2. CA allows for adoption of an adult, this can be secret and do not have to live w/ the adopter
transfers to children:

adopted children exceptoins
intestate succession:

3. Hall v. Vallandingham: Facts: After Earl dies, his children were adopted by Kilgore, his ex-wife’s new husband. Earl’s brother dies and he is childless and unmarried, and died intestate. The issue is whether the ad
transfers to children:

adopted children case law
intestate succession:

a. if adopted child dies without issue then adoptive parents inherit
i. natural parents (that gave child up) are cut off
ii. but natural parent who is the spouse of adoptive parent and raising child can inherit
transfers to children:

who inherits from adopted children
1. Although half bloods are treated as whole bloods under intestacy-Under adoption they are NOT treated as whole bloods
transfers to children:

who inherits from adopted children: exceptoin
intestate successsion:

5. Minary v Citizens Fidelity Bank & Trust Co: Husband adopted Wife so she would be able to inherit under the provisions of his mothers will, but bank refused. Ct held the adoption of an adult for the purpose of brin
transfers to children:

adopted children case law
intestate succession:

1. If natural parents agreed to give up custody-so child will be treated as an heir of a person when they die, but that person never adopts the child--then the court will treat it as an implied contract and equitably enfo
transfers to children:

Equitable adoption
intestate successoin:

1. When determining intestate succession the relationship of parent and child exists between a person and the person's foster parent or stepparent if BOTH of the following requirements are satisfied:
a. The relations
Foster Parents/Step Parents
intestate succession:

1. A child born out of wedlock is filus nullius, child of no one.
non marital children
intestate succession:

a. When a natural parent and child relationship is established and not rebutted
b. A court order was entered during the father's lifetime declaring paternity.
c. Paternity is established by clear and convincing
non marital children:

CAlifornia Law says when child can inherit from a natural parent
intestate succession:

a. If a child is born out of wedlock, neither a natural parent nor a relative of that parent can inherit from the child on the basis of a parent and child relationship unless both of the following requirements are satisfi
non marital children:

CA 6452: When a natural parent can inherit from out of wedlock child
intestate succession:

Any lifetime inter vivos gift made w/ the intent that it constitute and advance of the intestate share.
advancements
intestate succession:

a. Any lifetime gift to a child was an advancement (a prepayment of the child's intestate share) To avoid this a child had the burden of proving the lifetime transfer was an absolute gift that was NOT to be counted agains
advancements at common law
intestate succession:

a. When you give gifts to your kids it will NOT count against their intestate share
b. It will be treated as an advancement only if:
i. The decedent declares in a contemporaneous writing that the gift is an adva
advancements: CA Law reverses the common law presumption
intestate successoin:

a. Used when there is an advancement and the recipient survives the decedent. You add the assets of what is left to the advancement to create a total (Assets + Advancement = total, then divide by number of heirs)
i.
advancements:

Hotchpot
intestate succession:

i. If parents die without appointing a guardian for the child
1. – ct will appoint a guardian of the person from among the nearest relatives
2. this person might not be the one the parents would want to have c
managing a minors property:

Guardian of Person
intestate succession:

1. – ct will appoint a guardian of the person from among the nearest relatives
2. this person might not be the one the parents would want to have custody of the child
manaing a minors property:

Guardian of Person: if parents die without appointing a guardian for the child
intestate succession:

1. Where the minor lives
2. How the minor is raised and educated
3. And when the minor receives medical care
managing a minors property:

guardian of person:

a guardian of the person decides
intestate succession:

1. the child reaches majority
2. Dies before becoming an adult
3. Or is adopted
managing a minors property:

guardian of person:

A guardian of the person terminates when
intestate succession:

1. G cannot change investments without a ct. order
2. G has a duty to preserve property for minor and deliver it to him when he turns 18
managing a minors property:

guardian of property: guardian does not have title to the wards property
intestate successoin:

1. G CANNOT use principal to support ward without ct approval
2. ward often ends up with less property at the end of the guardianship (b/c ct supervision of the guardian is time consuming and burdensome--each trip to
managing minors property:

guardian fo peropty: guardian can only use income from the peorpty to support the ward
intestate succession:

c. Natural parents are the only ones that can appoint a guardian
d. Ct will appoint G if the parents do not designate (in the best interest of the child). If child over 12 will ask the child.
managing a minors property:
intestate succession:

a. CA this is for an incapacitated individual (minors).
b. Guardian is named conservator and given legal title to minors property as trustee
c. Appointment and supervision by a court are still required
i. B
manaing a minors property:

conservatorship
intestate succession:

i. The Uniform Transfer to Minors Act (UTMA) -CA adopted this
ii. Or its predecessor --The Uniform Gifts to Minors Act
maning a minors property:

Custodianship: custodian is given property to hold for hte benefit of a minor under either
intestate succession:

i. Can expend property available for the use and benefit of the minor--without a court order
ii. And without regard to
1. The duty or ability of any other person to support the minor
2. Any other income or
managing minors property:

custodianship:

custodian has discretionary power to manage the property nad re-invest it
intestate succession:

i. No accounting to the court annually or at the end of the custodianship is required (but an interested party may inquire if they wish)
managing a minors property:

custodianship; custodian is not under hte supervision of a court
intestate succession:

e. Can be used up to age of 25, but usually ends at 18 unless specified
f. potential for abuse
managing minors property

custodianship
intestate succession:

(most flexible of all property arrangements)
managing minors property:

trusteeship
intestate succession:

a. Testator can tailor trust specifically to family circumstances and testators particular desires
b. Under a guardianship or conservatorship the Child must receive property at age 18--BUT a trust can postpone posses
managing a minors property:

trstueeship
intestate succession:

applies both to testate and intestate
1. Policy is that do not want the killer to profit from his crime
2. It only bars the succession of property that the killer would have gotten but for the death of the victi
bars to successoin:

homicide
intestate succession:

1. Intestate – under this a successor cannot prevent title from passing to him. Person must renounce then title is passed on to the next intestate successor.
2. Testate – The devisee can refuse to accept the devi
bars to succession:

disclaimer
will capacity:


1. Testator must be an adult (18yrs old) --statute 6100
2. Testator must have mental capacity regarding:
a. The nature and extent of his property
b. The natural objects of his bounty (his family heirs)
capcity:

Test to determine if testator is competent to make a will
will capacity:

1. Will should be valid only if it represents T’s true desire of distribution
2. A mentally incompetent man is not defined as a person
3. Law requires mental capacity to protect the decedents family (protect their in
capacity:

why require mental capacity
will capacity:

iii. In re Estate of Wright: Daughter is contesting will of her father claiming he was of unsound mind when he signed the will (if she can get will to be held invalid then his estate will be distributed intestate and she will ge
capacity case law
will capacity:

iv. In re Strittmater (mental capacity / insane delusion case): The will is being challenged claiming the testatrix was insane. Strange writings that men were the devil were used to show she was insane. Ct held she was insane an
capacity case law
will capacity:

1. Person that takes care of someone that is physically or mentally incapacitated. If a person has one appointed there is a rebuttable presumption that they lack capacity.
will capacity; conservatorship
will capacity:

a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief
capacity:

insane delusion
will capacity:

a mistake is susceptible to correction if the testator is told the truth (cts do not invalidate wills b/c of a mistake-but this is changing)
capacity:

insane dilution
will capacity:

An insane delusion which impairs the testators testamentary capacity is one to which the testator adheres to against all evidence and reason to the contrary.
capacity:

insane dilution majority rule
will capacity:

Allows for the probate of a will while the testator is alive. An adversary proceeding is brought while the testator is alive to determine capacity and the validity of the will.
capacity:

insane dilutoin: living probate
will capacity:

i. To have undue influence in the eyes of the law there must be coercion. When person is coerced into doing something, which he does not desire to do, that is undue influence.
undue influence
will capacity:

1. The testator was susceptible to undue influence
2. That the influencer had the disposition or motive to exercise undue influence
3. That the influencer had the opportunity to exercise undue influence
4. That th
undue influence:

CA law to establish undue influence
will capacity:

1. a grantee can prove this by showing clear and convincing evidence that he acted in good faith and the grantor acted freely, intelligently, and voluntarily.
2. Grantee DOES NOT have to disprove all the elements of undue i
undue influence:

If the presumption is satisfied then the burden shifts back to the proponents of will to negate undue influence
will capacity:

has the burden of proving its validity---which is usually easily done by showing due execution
undue influence:

the proponents of a will
will capacity:

has the burden of proving undue influence directly or by proving facts that would give rise to a presumption of undue influence.
undue influence:

the person contesting a will
will capacity:

vi. If a part of will is the product of undue influence, those portions will be stricken and the remainder of the will may stand as valid if it can do so w/out defeating the testator’s intent.
undue influence
will capacity:

The test of undue influence is whether enough control was exercised over the mind of the testatrix to overcome her free will, causing testatrix to make a donative transfer that would not have otherwise been made
undue influence test
will capacity:

viii. In re Will of Moses: The deceased had an atty draft her will leaving a large portion of her estate to her lover who was also an atty (also handled legal matters for her-but not this will). Her sister contested the will cla
undue influence case law
will capacity:

ix. In re Kaufmann: K (a heir to Kay Jewelers) moved from DC to NY to be gay. Lived w/ his lover and lover ran the household (paid bills and handled affairs). Ct held for family as the Ct claimed UI on behalf of the lover as K w
undue influence case law
will capacity:

i. Says a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will. no contest clauses are disfavored
no contest clauses
will capacity:

ii. CA provides a procedure for a declaratory judgment that a particular suit will thwart the intention of the testator and trigger a no-contest clause, which will be strictly enforced.
1. What is the problem with this: if
no contest clauses
will capacity:

iii. CPC Sec 21300 –no contest statute
iv. CPC 21302: says this is non-waiveable you cannot contract around this
v. CPC 21303 -A no contest clause is enforceable. They will be strictly construed
no contest clauses
will capacity:

vi. The legislature had to balance the following concerns:
1. clause discourages litigation
2. On the other hand they might also discourage legitimate challenges
no contest clauese
will capacity:

1. Ex. I'm not saying I am challenging your will I am just saying I don’t understand what your will means--not deemed a contest of the will
2. Saying the document doesn’t reflect intent of T b/c of a minor mistake (Ex a
no contest clauses:

not held to violate no contest clauses
will capacity:

1. The person who drafted the instrument.
2. A blood relative, spouse, domestic partner, roommate, co-habitant or employee of the drafter business partner of the drafter
3. Any person who has a fiduciary relationship w
prohibited transferees:

4 categories of people where if you make a gift to these poeple it is not valid because of a presumption of UI
will capacity:

1. Transferor is related by blood or marriage (Ex son drafted the will)
2. If instrument is reviewed by an independent atty who counsels the individual and concludes the gift is not due to UI, fraud, or duress.
3. Aft
probited transferees:

exceptions to 21350
will capacity:

1. Bequest to an attorney
a. CA says when an attorney drafts a will and receives a gift from the will, Purging Statute will apply to purge gift if drafter does not fit into an exception (how drafter fights purging statute)<
probited transferees:

interested drafters
will capacity:

1. when an interested witness beneficiary receives a gift from a will a rebuttable presumption of UI arises, which can be rebutted by a preponderance of the evidence.
2. If it is not rebutted then the devise fails except fo
prohibited transferees:

interested witnesses
will capacity:

i. Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have done had the misrep not been made.
1. a provision in a will procured by fraud is invalid
2. the rema
fraud
will capacity:

1. Misrepresentation must be made with an intent to deceive the testator
2. AND the misrepresentation must have been made to influence the disposition of the will
there are 2 elements of fraud
will capacity:

– a person misrepresents facts so T will execute a will in their favor OR refrain from executing or revoking a will Ex. tell T that son is dead so they get more in the will. Can invalidate all or a portion of the will
a.
fraud in the inducement
will capacity:

occurs when a person misrepresents the character or contents of the instrument signed by the testator. This invalidates the entire will
fraud in the execution
will capacity:

iv. Estate of Carson (Fraud in the Inducement case): Alpha Carson married J. Gamble and lived with him for a year before her death--later it was determined Alpha was seduced by Gamble and the marriage was no marriage in the eyes
fraud case law
will capacity:

v. Puckett v Krida (Fraud in the Execution case): Nurses were hired to provide round-the-clock care for testator-they persuaded T that her relatives were wasting her money and wanted to put her in a nursing home to get her money
fraud case law
will capacity:

vi. Latham v. Father Divine (fraud / duress case): P is the first cousin of Mary Lyon, who left a large percentage of her estate to D, the leader of a cult. P asserts UI, fraud, duress. ML wanted to draft new will and D did not
fraud case law
will capacity:

1. The intentional interference with an expected inheritance or gift as a valid COA. P must prove that the interference involved conduct tortuous in itself (such as fraud, duress, undue influence). The theory CANNOT be used when
fraud:

tortious intereference with expectancy
will capacity:

An action for tortious interference with an expectancy is NOT a will contest. It does not challenge the probate or validity of a will but rather seeks to recover tort damages from a 3rd party for tortious interference (you faile
fraud;

tortious intereference with expectancy
will capacity:

3. The will goes through probate after which a tort claim is raised seeking punitive damages. Must prove fraud by clear and convincing evidence.
a. tort statute of limitations starts running on the action at the time the P
fraud: tortious interefeence with expectancy
will capacity:

4. Since a suit for tortious interference with an expectancy is NOT a will contest, a no-contest clause does not apply to such a suit.
fraud; tortious intereference with expectancy
will capacity:

a. The existence of an expectancy
b. A reasonable certainty that the expectancy would have been realized but for the interference
c. Intentional interference with that expectancy
d. Tortious conduct involved with
fraud:

test for tortious interference with an expectancy
will formalities:

1. Will must be in writing
2. Signed by the testator
3. Attestation (have 2 witnesses who also sign)
3 will formality requirements
will formalities:

wants to impress upon T what he is doing by signing a will. Ct feels if you perform the ritual requirements that you are positive this is how you want property distributed
ritual function
will formalities:

evidence/proof that can be shown to the court indicating what the testator wanted. A written instrument signed in front of 2 witness is evidence of T’s intent.
evidentiary function
will formalities:

requires disinterested witnesses to protect against fraud and UI. Protects the testator at the time of the execution of the will against the undue influence of others
protective function
will formalities:

safe harbor for test to ensure that what T wrote is carried out. Make everyone follow a standardized format-so cts will be able to recognize a legitimate will
channeling function
will formalities:

a) Will be in writing
2. (b) signed by:
a. The testator.
b. In the testator's name by some other person in the testator's presence and by the testator's direction.
c. By a conservator pursuant to a court o
california formality requirements
will formalities:

iv. In re Groffman: Wife claimed G did NOT acknowledge his signature to both witnesses simultaneously (G went into an adjacent room with witness 1 (Block) and Block signed the will as a witness, then after Block returned to t
will formalities case law
will formalities:

v. Stevens v Casdorph: Mr Miller signed will then bank teller took will to 2 other employees (who did NOT see him sign the will) to sign as witnesses. Exception: allows a witness who already signed a will out of the presence
will formalities case law
will formalities:

In some states signing in the presence of the testator is satisfied only if the testator is capable of seeing the witness in the act of signing (doesn’t have to actually see the witness sign the will, but must be able to se
presence; line of sight test
will formalities:

Other states say the witness is in the presence of the testator if through sight, hearing, or general consciousness of events, then W comprehends that T is in the act of signing
a. Ex if you see T go into an empty room t
presence: conscious presence test
will formalities:

the test is whether he would have been able to see the witness sign if he had the power of sight
presence: blind witness test
will formalities:

1. T can ask for help when signing their will, BUT if you just take your own initiative and help him sign -then it will NOT be a valid signature.
2. Digital Signatures--are valid as long as he intended it to be his signa
signing requirment of will
will formalities:

1. no requirement for one but it is a good idea to have it b/c if will is contested you will need witnesses to testify (problem if witness forgot or is dead). if you have a Attestation Clause-the law recognizes this as a pres
attestation clause
will formalities:

ix. Estate of Parsons: Parsons left a portion of her estate to 2 of the 3 witnesses. 2 of the 3 witnesses were beneficiaries in the will. One of the receiving witnesses disclaimed their devise. Heirs claimed will invalid b/c
will formalities case law
will formalities:

1. (a) witness must be competent
2. (b) the will is not invalid because it is signed by an interested witness
3. (c) unless 2 other disinterested witnesses a presumption of UI arises, Fraud which can be rebutted by
CA PC Setion 6112 interested witnesses
will formalities:

xi. CA PC § 6113 – CA gives full faith and credit to a valid will from another state.
xii. CA PC § 8221 Self proving affidavit
1. sworn (signed) statement under oath by witnesses of will that the will was duly e
will formalities california law
will formalities:

The client should keep the will in a safe place and not write on the will unless it is their intention to revoke it. Attny should only keep a copy of the will.
safeguarding the will
will formalities;

xiv. In re Pavlinko: H and W mistakenly signed each other’s will. After they died their devisee sought to probate the will (with the wrong sig. on it). Ct does not allow the will for probate, claiming in order to allow it i
will formalities case law
will formalities:

xv. In re Snide (22yrs after Pavlinko): H and W both mistakenly signed each others will. When H died W offered the will to probate. ct said will could be probated. ct declined the formalistic view that H’s intent attached i
will formalities case law
will formalities:

1. To prove testamentary capacity, intent, etc.
a. Ct is more willing to make changes based on these facts
2. NOT when there is a mistake in how the will was executed
a. Ct is NOT willing to listen to outside e
when courts will reform or let extrinsic evidence in to support probate of a will
will formalities:

a. Can be argued when the execution of the will was not proper. Proponent of will has burden to prove by "clear and convincing evidence" that the document to be probated was intended to be the decedents will. If cle
substantial compliance doctrine
will formalities:

a. If the whole point of the will formality requirements are to be confident the will reflects T’s intent and we have evidence of their intent then who cares about the formality requirements. CA has not rejected or adopted
dispensing doctrine
will formalities:

xvii. In re Will of Ranney (substantial compliance case): Will was 4 pgs and 5th page was a self-proving affidavit. Witnesses only signed self-proving affidavit (not the will). Wife contested will b/c it was not attested prop
will formalities case law
will formalities:

xviii. In re Estate of Hall (dispensing power case-ct dispenses with req’s of Wills Act): Facts: Hall’s daughter argued that a draft of a joint will executed by Hall and his wife and notarized by their attorney in the abs
will formalities case law
will formalities:

i. This is a handwritten unattested will. This was not meant to replace a formal will but is valid in CA and 24 other states.
holographic will
will formalities:

1. Material provisions (who gets what when you die) must be in T’s handwriting
2. signed by T
3. no witnesses required
*Note: Date not required but helpful as the last written instrument prevails
requirements for holographic will
will formalities:

1. a holograph may be signed at the beginning, or anywhere on the will, BUT if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature
holographic will - the signature requirement
will formalities:

iv. Kimmel’s Estate: K sent a handwritten letter to his 2 kids, whom are seeking to have the letter admitted to probate as his Will. Ct held it was a valid holographic will because he expressed his testamentary intent to de
holographic will case law
will formalities:

1. Is the paper testamentary in character
2. Is it signed
3. Just the statement of testamentary intent can be pre-printed Ex. I hereby bequeath⬦ (not the material provisions)
4. Extrinsic evidence is admissib
holographic will:

test for holographic will
will formalities:

vi. Estate of Mulkins (First Generation Statute case): Ct found that the printed words were NOT essential to the meaning of the handwritten words --so they upheld the holograph. Ct said they will not look at the preprinted pa
holographic will case law
will formalities:

viii. Estate of Muder (Third Generation statute) -7yrs after Johnson: Will was on a preprinted form, signed and notarized, BUT not witnessed. The handwritten dispositive language which was inserted in the paragraph satisfied
holographic will case law
will formalities:

ix. In re Estate of Kuralt: Girlfriend of K (Shannon) sought to probate a letter K wrote to her as a valid holographic codicil to K's formal 1994 will (that the holographic codicil amended his prior will). K's estate objected
holographic will case law
will formalities:

Conditioned upon the occurance of an event, even if the event does not occur they are usually deemed as valid only that the event was an impetus to draft the will.
holographic will, condition wills
will formalities:

i. Will is an ambulatory document that is not effective until death. To revoke T needs the same requirements to make a will. CA allows for partial revocation.
revocation of wills
will formalities:

2 ways to revoke a will:
subsequent writing

by a physical act
will formalities:

a. That expressly revokes all or part of a prior will.
b. By Inconsistency: if a new will or codicil is inconsistent or contrary to a prior will. (see below)
revocation of wills:

subsequent writing
will formalities:

a. Burned, cancelled, destroyed, obliterated, torn.
i. Burned – does not have to totally destroy, slight singe is sufficient
ii. Tear – Must occur through a material part
iii. Cancel – draw X or void on m
revocation of wills:

by a physical act
will formalities:

1. A subsequent will wholly revokes a previous will by inconsistency if T intends the subsequent will to replace rather than supplement the previous will
2. A subsequent will that does NOT expressly revoke the prior will
revocation of wills:

revocation by inconsistency
revocation of wills:

3. If the subsequent will does NOT make a complete disposition of the testators estate, it is not presumed to revoke the prior will, it is viewed as a codicil (a codicil supplements a will rather than replaces it)
4.
revocation of wills:

revocation by inconstistency
will formalities:

iv. Harrison v. Bird: Speer (the deceased) had her attny destroy her will that named P as beneficiary. S was NOT in atty’s presence when he destroyed it. Atty mailed the torn pieces to S. P retained her copy and offered it
revocation of wills case law
wills formalities:

v. CA law says you must destroy the original and any duplicate original if you want to revoke a will
revocation of wills CA law
wills formalities:

CA PC § 6121: if a duplicate-original will is revoked/destroyed according to CPC 6120 (above) then all duplicates are revoked, BUT if there is still another duplicate-original out there (in atty office or safe deposit box)
revocation of wills:

duplicate wills
wills formalities:

CA and the majority of states allow for a party to prove by clear and convincing evidence. Photocopy from atty. A will that is lost, destroyed without the consent of the testator, or destroyed with the consent of the testato
revocation of wills:

CA probate of lost wills
wills formalities:

ix. Thompson: K drafted a will then later instructed her atty that she wanted to revoke it. Her atty wrote on the back of the will her intent to revoke it-then had her sign it. Revocation is being contested. Ct held to cance
revocation of wills case law
wills formalities:

1. CA allows this (Most states also allow it).
2. you can cross out part of a will and replace it in with your handwriting
a. Ex will says car to A, and you cross out A and write in B
3. Ct looks to determine
revocation of wills:

partial revocation by a physical act
wills formalities;

i. Doctrine of DRR, if T purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if T would not have revoked will if he had known the truth.The Doctrine only applies when it is cl
dependant relative revocation and revival
wills formalities:
where there is an alternative plan of disposition that fails: or where the mistake is recited in the terms of hte revoking instrument; or where the mistake is shown by clean and convincing evidence
dependant applises to the following 3 scenarios
wills formalities:

iii. LaCroix v Senecal: Dupre executed a will leaving half her estate to her nephew and half to Senecal. Dupre then executed a codicil which changed her residuary clause and reaffirmed the devises in the first will. Dupre ha
dependant relative revocation and revival
wills formalities:

1. CA law on whether a first will is "Revived" by a revocation of subsequent will CA PC § 6123 (b):
a. If a second will that revokes a first will in whole or in part, is thereafter revoked, then the first wi
DRR revival statutes
wills formalities:

v. Estate of Alburn: Mrs. A had a will in Milwaukee, then a yr later executed one in Kankakee which revoked the M will. She later destroyed K will with the intent of reviving the M will. She died yr later and sister claim sh
dependant relative revocation and revival
wills formalities:

i. Change in family circumstances after the execution of a will. Divorce revokes any provision in the decedents will for the divorced spouse.
revocation by operation of law
wills formalities:

ii. CA PC § 6560 Share of an omitted spouse (Pretermitted (omitted) Spouse)
1. (a) receives all community property
2. (b) receives all QCP
3. (c) receives at most 1/3 separate property
revocation by operation of law CA law
wills formalities:

iii. CA PC § 6561 (Exceptions to 6560 to overcome pretermitted share request)
1. A provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement
2. The spouse is provided for in the
revocatino by opertion of law CA Law
wills formalities:

iv. CA PC § 6570 Child born or adopted after execution of a will
1. Unintentionally omitted – receives intestate share
v. CA PC § 6571 Child not receiving share
1. (a) failure to provide for child was inte
revocation by operation of law CA Law
wills formalities:

vi. CA PC § 6122 Revokes the power of an ex-spouse by dissolution
1. If spouses divorce then the portions of the will devising property to the ex-spouse are void, unless you specify otherwise. If remarry then the will
revocation by operation of law, CA Law
wills formalities:

1. All papers preset at the time of execution intended to be part of the will are integrated into the will. External Evidence (EE) is allowed to show what was present at execution and what was intended. Cases involving integ
compenents of a will:

doctrine of integration
wills formalities:

2. In re Estate of Beale: B at a goodbye party asked 3 of his professor friends to witness his will-he laid a pile of papers on the table, declaring it his will, then he signed and the witnesses signed the last page. After t
components of a will:

doctrine of integration case law
will formalities:

1. Republication applies only to a prior validly executed will. A will is treated as re-executed (republished) as of the date of the codicil.
a. Ex. Testator revokes 1st will by 2nd will and then executes a codicil to th
republication of codicil
will formalities:

is a supplement or addition to an existing will made to alter provisions of the will and must have testamentary character. Cannot cure prior execution issue, if prior will not properly executed cant resolve by republishing.
codicil
will formalities:

a. Writing must be in existence when will is executed
b. language in will must manifest intent to incorporate document
c. Will must describe document to permit its identification
d. Burden is on party seeking t
incorporation by reference: CA requirements
will formalities:

3. Clark v. Greenhalge (Repub. by codicil and Inc. by Reference case): N left a will, which named D as executor. N also had a notebook that had a list of how to devise her property. P was supposed to receive a painting accord
incorporation by reference case law
will formalities:

4. Smith v Greyson: T's will dated March 25, 1932 left $4,000 to his executor -to be paid out according to a letter in safe deposit box addressed to executor and dated March 25, 1932. T executed a Codicil Nov 25, 1933 -making
incorporation by reference case law
will formalities:

1. Doctrine allows EE to identify beneficiary or property passing under a will. If the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect
acts of independant significance
will formalities:

a. Identify what the act, event or thing referenced in the will is
b. Does that act or event have significance independent of how the will says the property is to be distributed
i. EX. T has a Toyota and just before
acts of independant significace case law
will formalities:

a. A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts and events occur before or after the execution of the w
acts of independant significance: CA LAW
will formalities:

the devise of a safety deposit box will include the contents as well. Same with locked desk drawer. Not if unlocked.
acts of independant significance general rule
contracts wills:

1. Ex. If you have an agreement to provide services in exchange for being provided things in a will--it is evidence of a contract--therefore you can sue the estate for breach of contract if they fail to pay
2. But if a re
3 types of K relating to wills:

a contract to make a will
contracts and wills:

1. A contract to NOT revoke is unenforceable unless it is proven by clear and convincing evidence.
2. A contract not to revoke a will is breached if, after the contract becomes binding: a party dies leaving a will tha
3 type sof K relating to wills:

a contract not to revoke a will
contracts and wills:

a contract to make a will: a contract not to make a will: a contract not to revoke a will
3 types of k to relating to wills
contracts and wills:

iv. Many states require K to be in writing to be enforceable (to satisfy SOF). However if SOF prevents enforcement of the K ct may still award as restitution, the value of the services rendered to the decedent
contracts relating to wills
contracts and wills:

1. The Will will be probated
2. Ct can impose the following remedies for broken K:
a. A constructive trust on the estate or the successors of the defaulting party
b. Specific performance, and
c. Others
if have a K, but when party dies the iwl does not comply with a K
contracts related to will:

1. (a)-Talks about how you prove there was a contract (b/c we don’t people going into court and saying there was a contract--we want proof
a. a will showing there was a K
b. a will that expressly referenc
contracts relating to wills CA Law
contracts and wills:

one document executed by both parties to be the will for each of them. Goes through probate twice.
1. When one testator dies, the instrument is probated as the testators will
2. When the other Testator dies, the
contracts related to wills:

Joint Will
Contracts Related to Wills:

2 separate wills with the same provisions granting all to the survivor.
reciprocal will
contracts related to wills:

the separate wills of 2 or more persons that contain similar or reciprocal (mirror-image) provisions.
1. mutual wills are very common b/c spouses often want to favor each other
2. Problems with using a mut
mutual will
contracts related to wills:

refers to a joint will in which the respective testators make similar or reciprocal provisions
joint and mutual wills
contracts related to wills:

xi. Via v. Putnam: H and 1st wife signed a mutual will leaving residuary their children (P). 1st wife died and H married wife 2(D) and never changed his will. H died and wife 2 filed a Petition to Determine Share of
elective share statute
contracts related to wills:


gives surviving spouse the right to elect against the decedents will and take a forced share of the decedents estate. Ex. if you only left a pittance to your spouse in the will she can reject the will and take
elective forced share
contracts related to wills:

if person remarries after making a will and new spouse survives testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have receive
permitted spouse statute
contracts related to wills:

xiv. NOTE: Majority Rule--is the opposite result of this case. Under majority rule kids would have won--K rights will be enforced first
contracts related to wills majority rule
construction of wills:

1. if words in will are unambiguous on their face then extrinsic evidence is inadmissible to alter T’s intent. Majority view. Very strict.
the plain meaning rule or no extrinsic evidence rule
construction of wills:

EE is always allowed to determine if language in will is ambiguous but ct will only use the EE if the language is reasonably susceptible to more than one meaning (if the meaning is unclear)
the plain meaning rule or no extrinsic evidence rule:

CA rejects this rule
construction of wills:

a. Patent Ambiguity: an ambiguity that is obvious on the face of the will
b. Latent Ambiguity: an ambiguity that does not appear on the face of the will, but manifests itself when the terms of the will are applied t
2 different typtes of amibiguities
construction of wills:

1. reformation is an equitable remedy that, if applied to a will, would correct a mistaken term in the will to reflect what the testator intended the will to say
2. justification for refusing to reform a will is tha
no reformation rule
construction of wills:

i. when extrinsic evidence is admissible to show that the testator meant someone other than the person with the legal name of the legatee
1. Ex if T says I leave A car and he always referred to his dog as car
personal usage exception
construction of wills:

i. a careful review of cases shows an unmistakable trend toward admitting extrinsic evidence not merely to resolve ambiguities, but also to correct mistakes to further the actual intent of the testator
slouching toward reformation: correcting mistakes without hte power to reform wills
construction of wills:

d. Mahoney v. Grainger: S died leaving the residuary of her estate to her “heirs at law” living at the time of her decease. Apparently meaning P’s, her 2 first cousins. But other first cousins contested that they c
construction of wills case law
construction of wills:

e. CA § 21122 technical words used in technical sense will be given technical meaning unless P was unacquainted with the term and the context of use is to the contrary.
construction of wills CA Law
construction of wills:

f. Arnheiter v Arnheiter: Guterl died and her will directed the executrix to sell her undivided 1/2 interest of premises known as No. 304 Harrison Avenue, Harrison, NJ and use the proceeds to establish a trust for her 2
construction of wills case law
construction of wills:

g. Estate of Gibbs: The will of George and Lena Adele named Robert U. Krause of 4708 North 46th Street, Milwaukee, Wisconsin if he survived the testators. Problem: It should have read Robert W. Krause who lived at a diff
construnction of wills case law
construnction of wills:

h. Erickson v Erickson: Facts: Ronald Erickson executed a will two days before getting married that was intended to leave his estate to his future wife but technically did not provide for the contingency of a subsequent
construnction of wills case law
construnction of wills:

i. Fleming v. Morrison: B had his atty draft a will to get P to sleep with him. B only had 2 witnesses sign it. Must have 3 in Mass. Ct held for D, because the will was not duly attested by a sufficient number of witnes
consrunction of wills case law
Death of Beneficiary:

specifically identified gift (my watch, car, 300 shares of stock)
death of beneficiary: specific gift
death of beneficiary:

is just monetary value (without specifying a particular property-usually just a number Ex $5,000)
1. If a specific or general devise lapses the devise falls back into the residue
a. Ex. T gives a watch to A, $1
death beneficiary:

general gift
death of beneficiary:

– a general gift that specifies the fund or property from which transfer is primarily to be made. Difference can be made up from general assets.
death of beneficiary:

demonstrative gift
death of beneficiary:

is a transfer of property that remains after all specific and general gifts have been satisfied
death of beneficiary:

residuary gift
death of beneficiary:

1. If a residuary devisee or all residuary devisees predecease T, the heirs of T take by intestacy (The No-Residue-of-a Residue-Rule)
a. Ex T devises the residue of her estate 1/2 to A and 1/2 to B. B predeceases T--
death of beneficiary:

residuary gift
death of beneficiary:

If a devisee does not survive the testator -the devise lapses
devise
death of beneficary:

where the devisee is dead at the time the will is executed or is a dog or cat or some other ineligible taker-then the devise is void and falls to residuary
void gift/devise
death of beneficiary:

devise is to a class of persons, if a member predecease T the surviving members of the class divide the gift. Can recognize this as the # can fluctuate and the members usually share a common characteristic.
class gift
death of beneficiary:

i. Says if a transferee (see below) is dead when will is executed, or fails to survive T, or is treated as failing to survive T (Slayer statute), then the issue of the deceased transferee takes in his place (as provided u
antilapse
death beneficiary:

1. Kindred of transferor (Blood relative)
2. Kindred of surviving spouse of transferor
a. does NOT apply to spouse of transferee—only kindred
3. Kindred of a deceased spouse of transferor
4. Kindred of
antilapse only applies to 4 categories of transferees
death of beneficiary:

if you make a class gift, but one of the members of the class died before you made your will and you knew it--then antilapse will NOT apply to them
antilapse:

Class gift
death of beneficiary:

1. T indicated that it should not apply
2. T indicated a substitute disposition if transferee should die
3. T required transferee to survive T for a specified period of time -requires clear and convincing eviden
antilapse:

antilapse is a default rule and will apply unless a contrary intention is given such as
death of beneficiary:

vi. If a beneficiary predeceases T, then his gift lapses. Unless there is an alternate disposition in the will.
antilapse
death of beneficiary:

1. Ex. $1000 to my son A, $100 to my brother B, residue to W. A, B, and W survive T. B killed T. B is survived by a son C. B didn’t predecease T, but is barred from taking under slayer statute CPC 250(b). This means tha
antilapse:

slayer statute
death of beneficiary:

viii. Estate of Russell: The testator left her $10 gold piece and diamonds to Hembree, her only heir at law, and the residue of her estate to Charles Quinn and Roxy Russell, the latter being her dog, who predeaceased her.
antilapse case law
death of beneficiary:

1. b/c antilapse does not apply to a dog
2. CPC 21111(b) reverses the No-Residue-if-a Residue-Rule and lets residue bounce to B (the other residuary instead of back to T’s heirs)-problem is that this law didn’t a
antilapse:

undern modern statute law
death of beneficiary:

x. Allen v. Talley: MS executed a will that left her estate to her living brothers and sisters, but the children of her deceased siblings claimed they were entitled to a share. Ct held for D, because the language stated l
antilapse case law
death of beneficiary:

xi. Jackson v. Schultz: P are the step children of LB. LB left his entire estate to his wife (P’s mother) and her heirs and assigns. P’s claim title to the house and are trying to sell it to D. Ct had to determine if
antilapse case law
death of beneficiary:

1. Payable on Death designations (POD). Falls under the law of K. A 3rd party beneficiary is not required to survive T and may pass K rights to their heirs. Not subject to anti-lapse.
2. Revocable trust – Inter viv
antilapse:

non probate transfer
death of beneficiary:

i. A class gift is a gift to a group of people defined by a position
1. Ex. To A's Children; to my nephews and nieces; children; brothers; nephews; descendents; family
2. Note: when at the time the gift is made:
class gifts
death of beneficiary:

if devise is to a class of persons-and one member of the class predeceases T then the surviving members divide the gift
1. Ex. Will says $1000 to my brothers A,B,C,D. A, B, and C are alive ,but D predeceased T. D's s
class gifts rule
death of beneficiaries

1. Ex. Will says $1000 to my brothers A,B,C,D. A, B, and C are alive, D predeceased T-but D has a surviving son E. D's share bounces to E (D's issue) each get $250
2. Ex. Will says $1000 to my brothers A,B,C,D. A, B
class gifts:

Antilapse can apply to a class gift
death of beneficiary:

iv. Dawson v. Yucus: NS died leaving a will. The 2nd clause of her will devised her 1/5 interest in her late husbands land to Burtle and Wilson (two of her nephews on her husbands side). Burtle predeceased Nellie. Wilson
class gifts case law
death of beneficiary:

v. In re Moss: Facts: The fact that an independent attorney was consulted and drew up the will by which Fannie Taylor Moses left most of her property to her attorney/lover did not overcome the presumption of undue influen
class gifts case law
death of beneficiary:

says if you leave someone property in your will but when you die it is no longer owned by you, then the property has adeemed. The ct says if you dispose of property that you leave someone in your will before you die it is
chages in property after execution of will:

ademption
death of beneficiary:

If a specific gift is not in T’s estate at death then it is adeemed (if you don’t own it then they cant get it)
changes in property after execution of will:

ademption general rule
death of beneficiary:

a. a general gift (money),
b. a demonstrable gift (a general devise payable from a specific source--Ex I leave you $5,000 payable from the sale of my truck. What happens if when I die I do not own a truck? The ct wi
chages in property after execution of will:

ademption does not apply to
death of beneficiary:

a. T’s 1990 will says: My Car to A, residue to B. In 1995 T sold the car for $50,000. When T died his estate has $50,000 (from the sale of the car). The car is a specific gift--so A gets nothing and B gets the residue o
changes in proeprty after execution of will:

examples of when ademption will apply
death of beneficiary:

a. Can classify the devise as general or demonstrative rather than specific
b. Classify the inter vivos disposition as a change in form, not substance (Identity Theory)
c. Construe the meaning of the will as of
ademption

Courts have several escape routes to avoid ademption
death of beneficiary:

5. Wasserman v Cohen: Facts: Wasserman (p) sought the proceeds from the sale of a building that would have been conveyed to her through a revocable inter vivos trust at the settlor’s death had the settlor not sold the b
ademption case law
death of beneficiary:

1. its not that the property is not in your estate it is just in a different form
a. Ex. T owns 100 shares of Yahoo stock at $80 a share totaling $8K. will says 100 yahoo to A. There is a stock split (2 for 1). T die
identity theory of ademption
death of beneficiary:

1. (a) says if you sell or transfer the gift, but the estate is still owed money, then you can get the difference
a. Ex. Leave someone a house, but you then sell it for $500,000. When you die the estate has only coll
ademption

involuntary transfer
death of beneficiary:

1. if an executor, conservator, or agent took property out of the estate -then you will still get the value of the house-ct says only if T sold it will we presume that he didn’t want you to have it
ademption:

specifically given proeprty is sold by conservator or agent
death of beneficiary:

1. if T specified that you were to get 30K, but T gave you 15K before he died--then the 15K will not count as a satisfaction unless the following 4 requirements are met:
a. T acknowledges the satisfaction in writing<
ademption:

satisfaction
death of beneficiary:

1. CA reverses the presumption that a specific disposition of real property in a will subject to a mortgage, deed of trust, or other lien, existing at the date of death, should be paid off from the estate--UNLESS the will
ademption:

exoneration
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