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September Wills and Trusts Notes


September 1, 1999


Those who destroy their own lives - what the old statutes used to call suicide


120 hour survival period in CA § 6403



need clear and convincing evidence of survival or you are presumed not to have survived


exception, is if applying 120 hour rule, and this presumption would cause property to escheat to state, then this does not apply


survival issue was very relevant in the news recently - Kennedy and Basset plan crash.


 No longer have to worry about who died first anymore.  That statute changed this. 

-         only John K had a will, the sisters did not have a will.

-         Each sister's estate was worth $500,000

-         Where does Caroline's property go?

1)      it goes to her parents (split equally between them)

2)      it was a common law state, so the wife did not get half the community property

3)      if it was CA half the property of John would have went to parents


intestacy distribution in CA: each get half; if one parent had killed the other within 120 hours of the death, they would have been treated as predeceased, and then the other parent would have got all the inheritance


Disclaimer - reasons you might not want to inherit property

1.      if taxes exceed value of property

2.      it is environmental risk

3.      you don't want junk

4.      do not want to benefit from death of deceased for moral or religious reasons

5.      don't want creditors to get property (you can disclaim property in CA to avoid creditors according to §283 probate code)

6.      can avoid taxes by disclaiming inheritance (parent can disclaim the property, and have it pass directly to children; usually only if you have more than $600,000 or more - this is a major tax break)


If you want to save taxes you have to comply with disclaimer rules in internal revenue


§260-295 - CA disclaimer rules

§278 - disclaimer must be in writing, and signed by the disclaimant

must identify in document what items are being disclaimed; can pick and choose what you want

the disclaimer must be filed

1.      must be filed within a reasonable time after you discover you are going to inherit (much different that federal law; federal law says it must be disclaimed within 9 months of date of death)

2.      if you disclaimed within 9 months it is presumed timely.  A reasonable time can never be shorter than 9 months (EXAM QUESTION)

3.      the document must be filed with the Superior Court or with the administrator of the estate, or anyone else having legal title or interest (§280 - file with property superior court, people having interest in court)

4.      §281 - once you disclaimed you can't revoke


Moral: before you accept or reject property from a decedent make sure you check out the property to make sure you want it.


If you disclaim the property, it is as if you predeceased the intestate (§282); the disclaimant cannot determine where the disclaimed property goes.  A disclaimer is NOT an assignment.


Can disclaim property coming under a will just like you can intestacy.  Can disclaim anything you want. 


§279b -



More Intestacy issues

1)      right to inherit

  1. people do not have a right to inherit,
  2. only an expectancy
  3. the expectance to inherit from someone who is alive does not create a property right there is no property right

2) instead, we would do a contract

a.       enter into a contract to give someone whatever person inherits

b.      can make a binding contract to sell your expectancy, but you cannot actually transfer it because you have no rights to transfer

c.       the risk is very high; doing this is extremely speculative

d.      some cases discuss it: In re Riders 141 CA 366; In re Blooms 50 Cal.Rpt 622 (1966)

2)      equitable conversion

  1. occurs when you have a situation in which real is treated as personal , or personal treated as real property
  2. heirs of real and personal property in CA are the same; equitable conversion is not an issue here; some states this is not the case

3)      liability for a predeceased intermediary's debts        

  1. assume yo0u have instate that was creditor, child was debtor, then child dies insolvent (none of the debt paid off)
  2. does child of insolvent get a smaller share because the debt was unpaid?  No - §6410.  Shares of debtor's issue are not made smaller to compensate for debt; inheritance goes directly to heir of intestate, not through estate of pre-deceased intermediary

4)      designation of heirs

  1. some states allow you to name anyone you want as an heir.  They fit in family tree like a child would
  2. CA does not have this type of statute
  3. Only OH and AK have these types of statutes
  4. This solves problems for non-maritals who want to share property

5)      choice of law rules

  1. if personal property - jurisdiction is domicile of decedent at time of death; can be domiciled somewhere other than where you are located at time of death
  2. real property - situs; state where real property is located



September 8, 1999


CA has strict compliance standards for wills.  Have to fit all rules or else the will fails.


Substantial compliance rule – as long as will comes close enough, then the state will forgive error and the will is valid.  A minority view but it is the UPC view.


What can you not dispose of with the will?

Section 6101 probate code: can give away separate property, one half community, one half of quasi community. AKA probate estate


Deed – document that transfers property (takes affect when executed)

Will – document that transfers property (takes affect at death)


§21116 – property vests in beneficiary at time of testator’s death unless will says otherwise


A will transfers nothing – it does not create a future interest; it creates an expectancy

Ambulatory instrument – a will


You can leave things to

§16102 – potential beneficiaries of a will

anybody entitly capable of taking and holding title to property


§6113 – california savings statute; permits a will to be valid in CA even though it does not meet the CA requirements.  If it complies with the law at the place where it was executed (even if in a difference state or country); if the will complies with the law of the testators, it will be valid


validity is determined under the law of CA which could allow us to use laws of other states, but interpretation is here.


Elements for a valid will:

1)      did the testator have legal capacity

2)      did the testator have testamentary capacity (sound mind)

3)      did the testator have testamentary intent

4)      were the proper formalities satisfied (regard to document and its execution)


I.                    Legal capacity – the legal status necessary to execute a will

A.     legal capacity in CA:

1.      have to be at least 18 years old (§6100A); OR

2.      a conservator making a will for a conservator with the consent of the court

a.       people not of sound mind can have a conservator

b.      minors can have a conservator

3.      CA does not have a probate statute that allows minors that are married to have a will; however, Family Code allows it (§7050)

II.                 Testamentary capacity – sound mind §6100a

A.     testamentary capacity codified in CA §6100.5

1.      understand nature of testamentary act – understand that they know that a will controls what happens to their property when they die

a.       do not need to know that it is called a will

b.      just need to know that this document controls where their property goes

2.      understand and recollect the nature of the individual’s property

3.      understand and know who will get your people (your heirs); your natural objects of your bounty; presumptive heirs

4.      age does not matter

5.      contractual capacity is the hardest to get generally because it is a bilateral agreement; testamentary capacity is easier to get since it is just one person

III.               Testamentary intent – testator intended the acutaul document being signed to be a will §6111.5

A.     types of cases that usually comes up

1.      letter cases – person writes a letter to attorney or child saying they want to do __ with their property

a.       letters are not wills; usually just letter of instruction

2.      sham will cases –

a.       Masonic initiation – a famous case; one of the hazing things was that the person had to write a will; person wrote a will leaving everything to his Mom; court held it was a valid will

3.      specimen will – just a rough draft of a will; is the scratchings an actual will or not?

B.     think about whether or not a person intended the document to be a will when considering the above examples


in CA:






September 13, 1999


requirements of a valid will:

1. legal capacity of testator

2. testamentary capacity (state of mind)

3. testamentary intent

4. formality


I. Formality

            A. four basic policies

                        1. ritual/cautionary function - these requirements help demonstrate that the                     testator was serious about making a will; it was not just an idle thought;                     testator was serious and deliberate

                        2. evidentiary function - create evidence of testator's intent; wittnesses,              ceremony; helps show what actually happened; reduces chance of forgery;               generates evidence

                        3. protective function - by requiring all the technicalities, it makes it                    harder for a will to exist that the testator really did not want

                        4. a channeling function - confidence that a testor gets after going through                       the ceremony; gives the testator greater assurance that his desires will be                  caried out

            B. general info

                        - has been a trend over time for loosening the formalities

                        - CA is in the middle of states in regard to the range of formalities required

                        - have to be very careful that you satisfy the requirements in whatever state                    you are in

            C. types of will

                        1. attested will - will that has witnesses

                        2. holographic will - a will in the testator's own handwritting

                        3. non-cupative will - oral will

                        4. statutory will - form of the will is contained in state statutes

            D. formalities diffent depending on the type of will         

                        - attested will requirements overview

                                    a. in writing

                                    b. signed

                                    c. witnessed

                        1. will must be in writing - from CA code 6110(a)                    

                                    a. therefore, CA does not recognize cupative wills (oral wills)

                                    b. 6113 will not even work (that will is valid under state it was                           written); because "saving statute" (6113) applies only to written wills

                                    c. language in which the will was written is irrelevant; might be                            problems with translations, but no requirement that the writting be in                             English

                                    d. use standard paper, permanent ink

                        2. signature requirement

                                    a. Ways to satisfy signature requirement 6110(b):

                                                i.testator - signature need not be a full name, just something                                           made with present intent to authenticate a writing; best to use                                      person's full name, but not a requirement

                                                - Civil Code section 14 - puts requirements on the use of a                                            mark

                                                            1). testator must not be able to write his or her name

                                                            2).  testastor's name must be written near the mark,                                                       but a person who write's their own name as a witness;                                                   they write name of person that cannot write, and their                                                   own name

                                                            3). most states do not have this requirement; harder to                                                   use a mark in CA

                                                ii. proxy - someone else signs signature for you 

                                                            1). policy - want people that could not write, because                                                    of physical problems, illiteracy, to be able to make a                                                      will

                                                            2). CA requirements - 6110(b)(2) - testator's presence,                                                            and in their direction

                                                            3). no requirement that testator be unable to write                                                          (unlike the mark requirements)

                                                iii. conservator - can get court permission to make a will for                                           a person that lacks capacity

                                    b. CA requirements

                                                i. CA has no requirement where the signature has to be.

                                                ii. many states require that the signature be at the end of the                                           will

                                                iii. recommended that will is signed at the end; also testator                                            and witnesses should initial every page

                        3. witnessed - 6110c -

                                    a. at least two witnesses are required

                                    b.  in CA minimum age of witness is not specified; recommended                                               that they be 18 years or older though

                                    c. witness must be able to testify before a court

                                                i. do they know significance of oath to tell the truth

                                                ii. know difference between truth and lie

                                                iii. witness need to know they are witnessing a will (section                                            6110)

                                                            1) this is known as "publication"

                                                            2) this formality is rare in the USA; but CA has                                                  retained it

                                                            3) witnesses do not need to know the contents of the                                                     will

                                                            4) testator or attorney should say "this is a will"

                                    d. order in which people sign; three ways in which order of signature:

                                                i. first approach - strict/English view - witness must                                            sign after testator; logic is that it makes more sense                                               for a witness to sign after he has witnessed what the testator                                                 did

                                                - causes problems because some attorneys are not careful about                                                order in which the will is signed

                                                ii. American view/continuous transaction - as long as all                                                 signatures are afixed to the will at the same time; as part as                                            a continuous transaction; it is valid

                                                iii. testator acknowledges the will; type of continguous                                       transaction approach

                                                            1) witness, witnessed testator signing will

                                                            2) witness acknowledged testator's signature

                                                            3) testator said "this is my will" ; means that                                                       testator can sign first

                                    e. CA practice

                                                i. no prohibition on signing by a mark in CA; but not                                          recommended

                                                ii. no requirement of physical location of signature;                                             recommended to be at end

                                    f. presence - witnesses and testator must be together at one of the                                 following times:

                                                i. testator does not have to sign in presence of witnesses

                                                ii. testator can say either "this is my signature, or this is                                       my will" in CA

                                                iii. in CA witnesses do not have to sign testator's presence;                                            not in statute; most states require witnesses to sign in                                       testator's presence

                                                iv. witnesses do not have to sign in each other's presence

                                                v. in CA, have to have both witnesses together when they sign                                       the will


I. What happens if a witness is also a beneficiary

            A. jurisdictions vary widely

                        1. will is void

                        2. totally irrelevant (modern approach)

                        3. CA approach is somewhat in the middle (Section 6112)

                                    a. not adoption view that the will is invalid (6112b)

                                    b. general rule by way of a presumption in the statute; if you were a                               beneficiary of a will and a witness, you are evil (fraud, duress,                                     menacing, undue evil)

                                    c. if you can rebut the presumption then you get the gift under the                                   will; if you can, then you take the full gift under the will

                                    d. what if you can't rebut the presumption: general rule is that you                                   get nothing; your gift fails; there are several ways in which you can                            get around this:

                                                i. under intestacy or a prior will you would have received                                               property anyway; if you can do this, you will receive the                                                smaller share or the amount you would have received; the policy                                          is that you have no motive to lie this way

                                                ii.  show that there are other witnesses; can use the testimony                                         of other witnesses to support the will

                                                iii. if the gift to the beneficiary was only in a fiduciary                                          capacity (ex: in trust for someone)

                                    e. best to always use dissinterested wills

II. qualifications for being a witness

            A. best qualification is that person was there

            B. Anybody can do it

            C. In normal case, it is fine that the witness does not know the testator

            D. general characteristics of good witnesses:

                        1. make sure they are over 18

                        2. disinterested not a beneficiary

                        3. young healthy

                        4. witnesses you can find

                        5. witnesses you can put on the stand

                        6. have witnesses sign self prooving afidavit (if no contest, then witnesses                       will not need to be produced for probate)

            E. Self prooving avidavit (8220) can be used to substitute for the in court testimony        of a witness (see pages 90-91 for samples)

                        1. CA 2015.5 Code of Civil Procedure - do not need a notary to have an afidavit                      (this is a radical move compared to all other states)

                        2. this means you don't need to worry about getting it notorized

                        3. section 6240 - has a sample will and afidavit

                        4. if the will is contested then the self proving afidavit is not any good (95%                    of wills are not contested)

                        5. in probate there must be witnesses; even if not contested there must be                      witnesses.  In order to avoid bringing witnesses in, has to be 1. not                   contested, 2. self proving affidavit

III. Will execution ceremonies

            A. good idea to have a formal ceremony

                        1. good effect on client

                        2. good PR for business

                        3. more likely to do all steps correctly

                        4. clients intent will be carried out

                        5. see pages 92-97 have a script for how to have a nice proffesional ceremony




Formalities for second type of will (holographic will):

I. Holographic will - will prepared in the testator's writing

            A. exempt from witnessing requirement

            B. 6111(A) - waives witness requirement

            C. big diffence in CA is how CA determines whether or not an instrument is holographic

                        1. the intent approach - if the testator intended for any of the non                       holopgraphic material to be part of the will, the will is no longer holographic

                        2. surplus appraoch (middle of the road approach) - if we can ignore the                       nonholographioc material and if the will still disposes of the property in the                       same way, then it can be treated as holographic

                        3. material provisions approach (most modern, UPC)- the will will be deemed               holographic if the material provisions are in the testator's handwriting

                                    a. names of the beneficiaries

                                    b. property

                                    - store bought forms will pass this view (where someone handwrites in                           the information in the blanks on the form)

            D. CA has adopted the material provision view (6111) - if the signature and the             material provisions are in the handwriting of the testator the will is valid

            E. uncertainty about whether a holographic will affects a prior will:

                        1. if the holographic will is undated, the statute presumes that the                        holographic will is old and that the other will is newer; the valid wills

                        2. if there are 2 holographic wills that are undated - the courts will normally                    only give affect to the consistent provisions

                        3. if during the time the undated holographic will could have been written the                  statue presumes that the testator lacks capacity unless the evidence shows                 otherwise

            F. When to use a holographic will

                        1. emergencies

                        2. if someone wants extreme privacy

                        3. interim will - something that will operate as a temporary will until a                 formal will can be prepared


II. non-cupative will (oral wills)

            A. not recognized in CA (authorized up until Jan 1, 1983)

            B. some jurisdictions still do

            C. no special provisions for soldier's wills or seamen's wills


III. Statutory will

            A. only 4 states (maine, michigan, Wisconsin, CA) that authorize statutory wills

            B. statutory form for a will (sectin 6240)

            C. first enacted around ~1985


NOW FINISHED WITH ELEMENTS OF A VALID WILL - will move on to what happens when changes in circumstances happens between when will is written and when testator dies.  How do these changes impact the will?

- look to the will first (instructions in will)



September 20, 1999


Section 21117 – divides gifts into 5 basic types

  1. specific gifts
    1. specific gift – refers to one that can be identified the property given precisely at the date of execution; property to be given is clearly measurable at the time the will was made
    2. specific gift of a general nature – the property is insufficiently described to be ascertainable as of date of will execution; instead waits until death; measured at time of death; examples:

                                                               i.      I leave my 1974 AMC Gremlin to X – very specific

                                                             ii.      I leave my car to X – this is more general; car that was owned at time of will execution could be different than what was owned at time of death

                                                            iii.      Sometimes the distinctions matter, sometimes not; statute in CA does not make a distinction

  1. general gift – similar to what was called a “legacy”; 21117(b); transfer from the general assets that does not leave specific property; two basic types of property that are the subject of general gifts:
    1. money (I leave $20,000 to X – this is called a general pecuniary gift (21117(d)) pecuniary gift – a fixed dollar amount gift)
    2. securities (I leave 100 shares of E-Bay stock to X; if the property was identified exactly (by stock certificate number) it would be specific; if words of possession were added it would also be specific (I leave MY 100 shares…)

Ø      if there are  words of possession or identification will be treated as specific gifts

  1.  Demonstrative gift - I leave $10,000 from the sock under my bed to X – indicates a fund from where the gift is to be made; indicate a source from where the money is to come from; if the source does not have enough money to cover it, you can get money for it from other places in the estate; are not very common; a type of general gift
  2. residual gift – I leave the remainder of my estate to X –


Types of gifts:

private – gifts for individual use

charitable – for the relief of poverty


Two classifications that you should always start with when analyzing wills:

-         type of property

-         type of beneficiary




  1. problem is that the property might not be in the estate when the testator dies
  2. ademption – when the property is no longer in the estate (ademption by extinction); relevant only for specific gifts
  3. common law – if the exact item in the estate, the beneficiary took nothing
  4. some think that the ademption view frustrates the intent of the testator
  5. so now states are adopting the intent view – will look at the intent of the testator; difference in these views is how far will they take the intent view
    1. CA is in the middle; has abandoned the ademption view, but does not go as far with the intent view as some states
    2. 21138, § 21133 – who gets what; get the item left of what is left
    3. beneficiary gets unpaid proceeds
    4. beneficiary can also get unpaid fire and casualty proceeds of the specific gift, but unpaid (such as flood insurance)
    5. property owned by the testator at death as the result of foreclosing on the security of a specifically given obligation; security interest follows the debt
  6. some states will give the property anyway – adopting the ademption view
  7. §21134 – if a conservator sells property that was specifically given, the beneficiary gets a substitute gift; if you regain competence for at least a year, the substitute gift does not take place

Eminent domain awards – beneficiary is entitled to a general pecuniary gift for the value of the insurance proceeds or the eminent domain awards; if the testator regains competency for a year or more then there is no substitute gift


If a client makes a specific gift, you need to ask the client what to do if the gift is not there; possibilities are:

-         cash equivalent

-         if item is not there, they get nothing; in general people who make specific gifts will not provide an alternate gift

-         specific gift of a general nature (“I leave my car” – solves ademption)


Ademption by extinction – property not in estate (referred to as ademption)

Ademption by satisfaction – person has already received the property (like an advancement) (referred to as satisfaction); intestate corollary of satisfaction


§ 21135 – requires a satisfaction to be proven in a writing

Ø      3 types

·        will provides for satisfaction

·        contemporaneous writing by the testator

·        writing by the beneficiary that says it is in satisfaction

Ø      these rules are the same as advancement

Ø      most people do not consider gifts to be in satisfaction


changes in value

I.                    appreciation and depreciation

A.     if the gift has changed in value, the beneficiary of a specific gift bears the burden of depreciation and the benefit of it going up in value

B.     when you make specific gifts, make sure you tell the client this is how it works


II.                 changes in value to corporate securities (§21132)

A.     only applies to a specific gift of securities

i.                     need words of possession

ii.                   or words of identification

iii.                  this would trigger § 21132

B.     as much

C.     cash dividends and interest prior to death are not part of the gift

III.               changes in monetary value

A.     don’t pay attention to inflation or depreciation

B.     different states have different rules

C.     CA rule – a pecuniary gift starts earning interest one year after death if it is not distributed

D.     § 12001 – the rate of interest is 3% less than the legal judgment rate (which is 10%) you get 7% interest while the money is going through probate;



September 22, 1999


Special circumstances

  1. ademption – what we do when property given is not in estate
  2. satisfaction – when there have been transfers to beneficiary after execution
  3. changes in value – of gifts
  4. exoneration – refers to paying off the debts on specifically given property; only a relevant issue for specific gifts
    1. if exonerated, the beneficiary receives the gift with the debt paid off

i.         the beneficiary likes this

ii. the beneficiary of a residual clause might be unhappy  - this is because they would get less, because it is their money that is being used to pay off the debt

    1. if not exonerated, the beneficiary gets only the equity with the debt
    2. states either are presumed or not presumed

1)      CA takes without exoneration (§21131)

2)      A will can provide for exoneration; needs to be something other than a general directive (§21131)

·        can do it for specific gifts

·        need to make sure you ask client what to do about exoneration every time you make a specific gift


Abatement – how we determine which gifts fail, abate, to pay other gifts’ debts or expenses

1, what if there is not enough property to pay all the debts?  Which gifts have priority

a.       first follow the directions of the will, if it says

b.      if it does not say, examine the will to come up with some sort of plan or purpose

c.       if this cannot be satisfied,

d.      21402 – statutory order of abatement

1.. property not disposed of by will

2.. residuary gifts

3.. general gifts to persons other than testator’s relatives

     -.. general gift: corporate securities without words of identification or words of possession; money

                        4.. specific gifts to non-relatives

                        5.. specific gifts to testator’s relatives (these are the strongest gifts)

                        21404 – cannot use a specific gift to exonerate another specific gift (treated as independent units)



I leave my house to my friend X.

I leave $15,000 to my son, Y.

I leave $45,000 to my daughter, Z.

I leave $20,000 to my friend, X.

I leave remainder to SCU.

Estate has $20,000 and a house after debts are paid.  Fair market value of the house is $350,000.

-         who gets what?

We don’t have sufficient property to do everything so we have to do abatement.

Strongest gift in a will: specific gift to a relative (none of these)

Next category: specific gifts to non-relatives ;  Friend gets the house

General gifts to testator’s relatives: have $60,000 of this (son and daughter’s gift); divide this by pro-rata shares; so in order to get the ratio, do WHAT’S LEFT/WHAT’S GIVEN



--------  this equals a one third ratio



so son now gets one third of 15,000 which is 5,000

and daughter gets one third of 45,000 which is 15,000


X gets nothing; there is no remainder so SCU gets nothing.


APPORTIONMENT – only applies to estate taxes (federal or state)

Ø      jurisdictions are divided between those that presume apportionment and those that don’t

Ø      the modern view is that apportionment is presumed (all beneficiaries pay their fair share of the taxes)

Ø      just need to know what apportionment is, and that CA presumes it for estate taxes – everyone pays their fair share; it does not go through the normal abatement order


Finished with changing circumstances with regard to property.  Now doing:

CHANGING circumstances with regard to person.


Surviving spouse:

-         regardless of what the will says, the spouse may be entitled to some benefits regardless of what the will says

-         the first spouse to die can give away only the following in her will: all separate property, half of the community property, half of the quasi community property; see sections 100, 101

If a deceased spouse wrote a will after the marriage, the surviving spouse cannot get any of the property (that belonged to the dead spouse) in CALIFORNIA.  In theory the surviving spouse is already adequately provided for because she already has half the community property

-         homestead, exempt personal property, family allowance


What happens to wills written before marriage that did not include the spouse?

Section 21610 – tells about the share of the omitted spouse if it is a PRE-marital will

-         surviving spouse gets all the community property (the half owned by the first spouse to die)

-         surviving spouse also gets all the quasi-community property

-         separate property – as long as it does not exceed one half (because if died intestate this is the most possible they could get); so they will either get one-half or one-third


1.. spouse wrote in original will that if they get married the spouse will not get anything

            2.. non-probate transfer: example: life insurance

            3.. pre-nuptual agreement (can also be a post marital agreement) – any valid agreement

21612 – share first comes from intestate property if any, then do it pro-rate after that.  Everyone shares proportionally after that


other states give the other spouse to elect against the will or a forced share; the spouse usually takes the bigger one.  States vary. 

-         most modern view is a sliding scale percentage based on length of marriage; longer the marriage the more you get.

-         At 15 years you get the maximum, 50%


Section 120 – gives a non-domiciled spouse a right to the home share….?  This works as if the property were in their home state


DIVORCE and the effects on a will

-         once you get divorced the ex-spouse will not take anything

-         6122

-         property then passes as if the ex-spouse had predeceased

-         often should put in divorce that says if there is a filing for divorce the ex-spouse will not take it; you should put this in because sometimes divorce takes a long time



September 27, 1999


Review of last week


Premarital will – possibility of a forced share

Postmarital will – no possibility of a forced share


Divorce – voids all provisions in favor of the ex-spouse


Pretermited heir – people that are omitted from a will (often children); whether the left out people are entitled to a portion of the estate

-         under most states there is no obligation to provide for your children in you will


Ways to have pretermitted heirs

Ways to be an omitted child:

1. Born or adopted after will execution

2. child is actually alive, but testator though the child was dead

4.      child alive, but testator did not know child was born


Disinherited child is not an omitted child.


Omitted grandchild is not within the omitted children statute.  The children is titled “omitted children” of the three types we have listed above


Size of omitted share:

-         receive what they would have under intestacy 21620, 21622

-         they could potentially take the entire estate

-         other extreme is that the size would be very small


Where does the share for the pretermitted heir come from?

-         first look to intestate property § 21623

-         proportionally from all the beneficiaries – DON’T use abatement order

-         court has power to satisfy the share in a different way if it is necessary to satisfy the testator’s intent


Exceptions – situations where the omitted child will not get a share (only apply to the omitted child who was born or adopted after will execution) in 21621

-         intentionally left out and the intention is demonstrated in the will

-         “I intentionally make no provision born or adopted after the execution of this will” this is how people can avoid false paternity claims

-         pretermitted child is the __ of the estate

-         testator had to have had at least one other child at the time of will execution

-         third exception: significant non-probate transfer


Beneficiary dies before the testator – this is called “lapse” – beneficiary fails to survive the testator

-         normally if this happens, the beneficiary cannot take anything; they lack the ability to hold title

-         only live people can hold title

-         § 21109(a) – beneficiary who does not survive the testator cannot take

-         so what do we do with the property?

-         Every time you write a will you have to have a contingency for what happens if the beneficiary dies first; this is prudent practice – must do this


Lets now assume the will is silent, what is the second step?

-         look to see if the jurisdiction had an anti-lapse statute

-         this type of a statute substitutes the pre-deceased descendants for the pre-deceased

-         CA statute operates in the following manner: (§21110)

1.      make sure there is no contrary indication in the will

2.      must demonstrate a sufficient relationship between survivor and beneficiary

3.      statute does not apply if they were a friend

4.      next thing is that it would now go to the residual beneficiaries

5.      if the gift cannot be saved by the anti-lapse statute, the residual would now pass by intestacy

6.      if the residual is left to two people, then the survivor would still get it

7.      do not presume survivor ship language except if it is a residual clause

SUMMARY: When the beneficiary has pre-deceased the beneficiary cannot take.  Then look for alternate provided in the will.  Then look to anti-lapse statute to see if it provides for a substitute.  Then it goes into residual.  If that does not work, then it will pass by intestacy.  Court will presume survivorship language if a residual is passed to two people.


Cy pres – not codifidied, but well recognized by CA courts.  Is used to substitute a different charity for the one that was specified in the will (because the one specified in the will no longer exists)

-         all sorts of charities will show up at the probate to testify why their charity is what the testator really would have wanted


Issue of survivorship – 21109(b) – clear and convincing evidence for survivorship in a will (intestacy is five days); very unusual to have this different from intestacy provision but CA is different

-         very common to place a survival period in the will



September 29, 1999


Revocation of a will

A. Revocation of will by operation of law

-         circumstances trigger revocation in partial or all of the will


Other ways of revoking gift:

  1. marriage of testator
  2. divorce of testator
  3. omitted child (pretermitted child)
  4. lapse / death of beneficiary
  5. beneficiary murdering testator
  6. ademption


Courts do not take into account value of the estate if it changed from time will was written and time testator wrote the will.

-         other changes do not matter to revoke a will; only 6 things listed above



2.. Revocation by physical act (§ 6120(b))

            A.. four basic requirements

                        1.. mental capacity to revoke

                        2.. revocation intent

                        3.. physical act

a.. burn the will

b.. tear the will up

c.. cancel the will (strike parts of it out; can still read what was


d.. obliterated (can no longer see the parts that were obliterated)

e.. destroy the will (

n      it is okay to have proxy perform the physical act as well

4.. concurrence of capacity, intent, physical act

a.. a mistake does not count as a revocation (if person believed they had revoked the well, but somehow the will was accidentally saved, most likely the court would still count the will as valid)

n      does not recommend revocation by physical act because it is inherently ambiguous (do not know the intent, when it was revoked, who revoked the will); bad method to rely on

n      should revoke by writing as well as do the physical act


B.. Revocation by writing

1.      CA recognizes partial revocation


C.. Revocation by subsequent writing – preferred method; avoids ambiguity

            1.. two ways to do this:

                                    a.. express revocation – always want to date your wills so you

know which one came first; see page 148 of the book for a sample clause; this is how you know which will came first for purposes of revocation

b.. revocation by inconsistency – do different things in different

wills (§6120(a)); the later provision is what is valid.  The

clause closest to the end of the will is the one that will be considered valid

n      best to have one unified document; this avoids inconsistency; should just redo the whole will most likely

n      a codicle may be used sometimes, but usually not recommended


Other issues that are of particular concern for revocation:

I.. presumptions - if you have the original will there is often a presumption of continuity; if you can’t find the will there is the presumption it was revoked.

            A.. presumption of continuity

                        1.. if you have the original document it is presumed to be the real will

            B.. presumption of revocation

                        2.. if you do not find the original will; §6124

                                    a..  if the testator was last seen in the testator’s possession and now

the will cannot be found there is a presumption of revocation

                                    b.. this presumption is rebuttable


II.. Revival – the process of revoking a prior will in a future will and then the will revoking the first will is revoked; three approaches

(fact pattern: will 1 written; will 2 written and revokes will 1; will 2 is destroyed, lost, etc.  QUESTION: is will 1 valid?)

A.. revival approach: theory that will number 2 was not affective until testator dies; since testator revokes will 2, it could never have revoked will number 1

B.. no revival approach: view will number 2 as the revocation document; and the despositive document (will 1), that never takes effect.  Therefore the testator dies intestate.  A will that revokes prior wills is actually two legal documents in one

C.. intent view (Uniform Probate Code approach): try to do what the testator wanted (§6123); CA has adopted the intent view;

1.. first creates a presumption of no revival

2.. then says there is the ability to introduce some types of evidence to the contrary; divides into 2 situations depending on how will 2 was revoked

a.. physical revocation of will 2 – look at testimony or subsequent revocations; any type of extrinsic evidence can be used

b.. if will 2 was revoked by will 3 – the only place we can look for evidence of revival is to look in will 3


III..  Conditional revocation

A.. express conditional revocation – I revoke this will only if ____

1.. this is very rare; can revoke part or all of the will

B.. dependant relative revocation (conditional revocation) – the condition on the

revocation is not expressly stated; the testator did not state the condition, but we imply it from the surrounding circumstances

            1.. the condition on which the person based the revocation was not true so therefore the revocation does not take place

            2.. most common scenarios:

                        a.. replacement will ineffective scenario (example 8-16)

n      will number one is valid; testator destroys will number one and then writes will 2 which turns out to be invalid.  WHAT happens?  Is there intestacy or can we somehow get will one back?

o       the testator revoked will one because he thought will 2 was good.  Because the testator was mistaken in his believe that will 2 revoked will 1, will 1 is then valid (policy: only choices are will one or intestacy; courts rather have will one (if it is close to will 2 in its term) than have intestacy)

b.. revocation by physical act: EXAMPLE revocation of first gift was conditioned on the validity of the second gift.  Since the second gift was invalid, the revocation never took place. This issue only arises partial revocation by physical act (CA).  See example 8-19