FFL Wills 2011 1

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CHECKLIST TO WILLS
I. IS THERE A VALID WILL?

A. Testamentary Intent
B. Testamentary Capacity
1. Infancy
2. Mental capacity
3. Insane delusion
*4. Fraud
*5. Undue influence
*6. Mistake
7. Ambiguity
C. Legal Formalities: (Ritual/Evidentiary/Protective)

1. Formal Will
2. Holographic Will
D. Contracts To Make A Will (Contract/Remedies)

E. Joint/Mutual Wills
II. WHAT DOES WILL CONSIST OF?

A. Integration
B. Codicil
C. Incorporation By Reference
D. Independent Significance
1. Pour-Over Trust
III. IS VALIDITY OF WILL AFFECTED BY SUBSEQUENT EVENTS?

A. Revocation
1. Subsequent Testamentary Instrument
a. Express revocation
b. Implied revocation
1) Total inconsistency
2) Partial inconsistency
2. Physical Act
a. Presumption
b. Lost/Destroyed Will
3. Operation of Law
a. Omitted spouse
b. Omitted child
c. Divorce
d. Forfeiture
4. Dependent Relative Revocation
B. Revival
Fleming’s Fundamentals Of Law (© 2011) Wills Page 1

IV. HOW IS PROPERTY TO BE DISTRIBUTED?
A. Order of Payment
B. Classification Of Gifts:
1. Specific
2. General
3. Demonstrative
4. Residuary
C. Doctrine Of Ademption
D. Satisfaction By Inter-Vivos Gift
E. Abatement
F. Increases in Property Value
1. During Testator's life
2. After Testator's life
G. Exoneration
H. Lapse/Anti-Lapse Statutes
I. Survivor Rights:
1. Omitted heirs
2. Slayers
V. HAS BENEFICIARY RENOUNCED RIGHTS UNDER WILL?
A. Release
VI. HAS THERE BEEN A PARTIAL/TOTAL FAILURE OF WILL?
A. Intestate Succession
1. Community Property rules
2. Quasi-Community Property
3. Separate Property
4. Ancillary rules
a. Simultaneous death
b. Adopted children
c. Illegitimate children
d. Stepchildren
e. Advancements
CAVEAT: MENTAL/WRITING CHECKLIST
I. VALIDITY
II. WHAT DOES THE WILL CONSIST OF?
III. REVOCATION/DRR/REVIVAL
IV. DISTRIBUTION UNDER WILL (Instrument/Asset/Party)
V. INTESTATE SUCCESSION

I. IS THERE A VALID WILL?
A. Testamentary Intent:
1. Look for present unequivocal intent, i.e., does testator intend the instrument to dispose
of his property upon death?
a. Look to testator’s intent to create a revocable disposition of his/her property to
accrue and take effect upon his/her death and passing no present interest
b. Declarations by the Testator are admissible to demonstrate testamentary intent
c. Reference may be made to the circumstances of the execution of the instrument
and the language will be construed in light of their circumstances
2. Wrong will signed: Two Testators mistakenly sign the will prepared for the other
testator
a. Majority view: Mistakenly signed will is not admissible because the testator
did not intend the instrument he signed to be his will
1) Modern courts may grant relief through mistake to effectuate testator's
intent
3. Conditional wills: A will may be made expressly conditional upon the happening of an
event. If the condition does not happen, the Will will be denied probate
a. May refute the condition by showing it to be a declaration of motive rather
than a condition
b. Preference for unconditional interpretation: Majority interprets language
raising issue of contingency as indicating the inducement for a will rather than
making the will conditional
c. Parol evidence is not admissible to show that a will absolute on its face was
intended to be conditional
d. Conditions must be in writing
e. A conditional codicil can republish a conditional will even though the
condition of the codicil has not been satisfied
B. Testamentary Capacity:
1. Infancy: Must be 18 years old to make a will

a. Emancipated minor may qualify but not in Ca.
b. Chronological age not mental capacity age, i.e., 54 year old with mental age of
12 can make a will
2. Mental capacity
a. Requirements: Testator must know and understand at the time of the making of
the will:
1) Nature and extent of his bounty
2) The persons who are the natural objects of his bounty
3) The nature of the disposition

b. Must be of "sound mind" but not necessarily "sound body"
c. Person adjudged insane is presumed to lack testamentary intent. This
presumption is not conclusive
1) Lack of mental capacity invalidates the will
2) A conservator may make a will for conservatee if the conservator has
court authorization per sec. 2580
3. Insane delusion
a. Defined: Ideas or beliefs which spring spontaneously from a "diseased or
perverted mind" without reason or foundation in fact. Testator must act on the
basis of the belief or idea
b. Invalidates only that portion of the will to which the delusion is pertinent (may
invalidate the whole will)
c. Burden of proof is on those claiming an insane delusion. Must show that "but
for" the insane delusion, the disposition would not have been made"
*4. Fraud: Testator must have been willfully deceived by a beneficiary as to the character
or content of the instrument or as to extrinsic facts which would induce the will or a
particular disposition
a. Testator must in fact be deceived and act in reliance on the fraudulent
misrepresentation
b. Effect is to invalidate only beneficiary's interest unless entire will is affected
c. Two types of fraud:
1) Execution: Testator tricked into signing a document not knowing it to
be a will (no intent)
*2) Inducement: Testator has the intent to make will but fraudulently is
induced into making a particular gift (intent present)
a) The will/gifts affected by the fraud must be set aside
d. Innocent misrepresentation by a third party is not actionable
*5. Undue influence: Influence so great as to destroy the free agency of the testator
a. Elements:
1) Testator susceptible to influence, i.e., age, health, etc. and
2) Opportunity to exercise influence and
3) Disposition to influence for improper purpose and
4) Are provisions of will unnatural?
a) A family member alone is not enough to prove undue influence,
rather evidence of same when combined with proof of other
elements listed above
b) The mere desire to obtain a larger portion of decedent’s estate is
not sufficient to prove undue influence.
b. Kindness and affection will not, by themselves, be regarded as undue

influence. Remember, all wills are the product of influence. Issue becomes
what is undue influence?

c. Measure influence by:
1) Person who exercises influence (usually beneficiary)
a) Result
b) Haste (things done quickly)
c) Secrecy
CAVEAT: Beware of interested witness (infra)
d. Burden of proof is on the challenger to show undue influence

1) CAVEAT: A parental inter-vivos (not by will) gift to a child raises a
presumption of undue influence. Presumption is rebutted by:
a) Showing that the genesis of the action to give the gift first arose in the
mind of the parent;
b) Parent was not goaded by the child to actually make the gift.
e. The burden shifts and a rebuttable presumption of undue influence is created when
the challenger shows:
1) Fiduciary relationship between beneficiary and testator (H & W)
2) Beneficiary participated in procuring or drafting will
3) One of the subscribing witnesses to the will is a devisee and there are not at
least 2 additional disinterested witnesses
4) Will is unnaturally generous to particular beneficiary
5) Testator had testamentary capacity but was physically or mentally susceptible
to influence
f. The effect of proven undue influence is that the will may fail in whole or part
g. No-Contest clause:
1) Ca. enforces no-contest clause but they are "strictly construed" - §21304
a) Beneficiary with reasonable cause can bring a contest on one or more
of the following;
(1) Forgery;
(2) Revocation;
(3) Establish invalidity of any transfer described in §21350
("prohibited transferees") §21350 applies retroactively 1999);
(4) "Reasonable cause" means the party filing the action,
proceeding, contest, or objections has possession of facts that
would cause a reasonable person to believe that the allegations
and other factual contentions in the matter filed with the may
be proven or, if specifically so identified, are likely to be
proven after a reasonable opportunity for further investigation
or discovery;
(5) §21307 – Precludes the enforcement of the no contest clause,
since the beneficiary who initiated the will contest had
probable cause to suspect undue influence or fraud even
though the beneficiary against whom the contest was filed did
not necessarily fit the statutory description of a person who

influenced the drafting of the will;
(6) Extends to instruments executed before the effective date of the
statute (January 1, 2001.);
(7) The Statute of Limitations for the commencement of any action
referred to in Probate Code §21320(a) is tolled beginning with
the date the application for the court's determination under that
section is made and ends with the date the court's
determination becomes final.
2) Contest means any action identified in a “no contest” as a violation of the

clause
3) Includes both direct and indirect contests

a) Direct contest – A pleading in any court alleging the invalidity of all or
a part of an instrument based on one or more of the following grounds:
(1) Revocation;
(2) Lack of capacity;
(3) Fraud;
(4) Misrepresentation;
(5) Menace;
(6) Duress;
(7) Undue influence;
(8) Mistake;
(9) Lack of due execution;
(10) Forgery.
b) Indirect contest - A pleading in any court that indirectly challenges the

validity of all or part of an instrument based on any other ground not
designated in a) above and that does not contain any of those grounds
4) Actions which are not a contest unless expressly identified in the no contest
clause as a violation of the clause (applies to instruments executed on or after
January 1, 2001):
a) Creditor's claim or action based on it;
b) Action related to character, title, or ownership of property;
c) Challenge to the validity of an instrument, contract, agreement,
beneficiary designation, or other document other than the instrument
containing the no contest clause.
5) As a matter of public policy, the following do not constitute a violation of a no

contest clause:
a) Pleading regarding an order annulling a marriage of the person who
executed the instrument containing the no contest clause;
b) Pleading challenging the exercise of a fiduciary power;
c) Pleading regarding the appointment of a fiduciary or ... the removal of
a fiduciary;

d) Pleading regarding an accounting or report of a fiduciary;
e) Pleading regarding the interpretation of the instrument containing the
no contest clause or an instrument or other document expressly
identified in the no contest clause;
f) Pleading regarding the approval of a settlement or compromise
whether or not it affects the terms of an instrument;
g) Pleading regarding the reformation of an instrument to carry out the
intention of the person creating the instrument;
h) Petition to compel an accounting or report of a fiduciary if that
accounting or report is not waived by the instrument. If the instrument
waives an accounting or report of a fiduciary, a petition to determine if
subdivision (a) of §16064 applies does not constitute a violation of a
no contest clause.
i) Personal Representative’s act of seeking compensation for
administrative services, where the request was made in connection
with the final account and petition for final distribution.
6) Number 4) above does not apply to a codicil or amendment to an

instrument that was executed on or after January 1, 2001, unless the
codicil ... or amendment adds a no contest clause or amends a no
contest clause contained in an instrument executed before January 1,
2001
a) ESTATE OF ROSSI (2006): The beneficiary desired to
challenge a trust amendment that reduced his share of trust
assets. The amendment did not include a no contest clause.
The trial court granted the beneficiary's application pursuant to
Prob, Code, 21320 and held this would not violate the no contest
clause in the original will/trust.
Court of appeal affirmed the instruments were executed
after January 1, 2001and they were subject to the specificity
requirements of prob. Code. 21305 (a). The amendment was
separate from the instrument containing the no contest
clause, within the meaning of 21305(a) (3) because it did not
contain a no contest clause, and it could be challenged
without violating the no contest clause of the instrument
because such an action was not expressly identified as a
violation.
The plain language of the first clause of 21305(c) provides
that 21305(a) does not apply to a codicil or amendment to an
instrument executed on or after January 1, 2001. This is so
because the instrument itself, executed on or after that date
is already subject to 21305(a). 21305 (c) clarifies that a
codicil or amendment to such an instrument need not repeat
the specific no contest clause already contained in an
instrument executed on or after January 1, 2001. 21305(a)
(3) recognizes instruments or other documents separate from

the instrument containing the no contest clause, and that
those separate instruments or documents may be the subject
of a safe harbor challenge.
7) Number 5) above shall apply only to instruments of decedents dying on
or after January 1, 2001, and to documents that become irrevocable on
or after January 1, 2001. However, letters e), g), and h) shall only apply
to instruments of decedents dying on or after January 1, 2003, and to
documents that become irrevocable on or after January 1, 2003
b. Ca. invalidates a no-contest clause in the following circumstances. Any person

interested may, without forfeiting any benefits under the will, contest a
provision of the will that benefits
1) A person who drafted or transcribed the will
2) A person (other than the testator) who gave direction to the drafter
concerning substantive provisions or insertion of the no-contest clause,
or
3) A witness to the will
c. While the truth of the statements made to the testator may be a defense to an
action based on fraud, truth of statements made may still be actionable for
undue influence i.e. use of truthful statements may be for purpose of undue
influence.
d. An action pursuant to §21305: A determination under this section of whether a
proposed motion, petition, or other act by the beneficiary violates a no contest
clause may not be made if a determination of the merits of the motion, petition,
or other act by the beneficiary is required.
*6. Mistake:
a. Mistake in the execution: As a general rule, where there has been a mistake in
the execution of a will (testator signed the wrong will) it will fail for lack of
testamentary intent.
1) Where testator has made a mistake as to the contents, testamentary
intent lacks and the Will will be denied probate, or the provision will be
stricken
5) Try to argue ambiguity rather than mistake (infra).
6) Mistake related to the probate of a California statutory will form.
a) Decedent executed will under mistaken belief as to its content
and the statutory will form that was signed was not her intended
will.
7) Post death subscription by attorney/witness was valid where no

indication of fraud or wrongdoing. (The attorney forgot to sign the will
as a witness until after the death of the testator.)
a) See Estate of Sauressig page 10
*b. Mistake in the inducement: As a general rule, no relief is granted for a mistake

in the inducement unless fraud exists (Key) except
1) Relief will be granted only where both the mistake and the actual
alternative disposition appear on the face of the instrument
a) Beware of omitted heir status
2) The court will not rewrite the will, but may strike mistakes (to carry out
the testator's intent)
3) Effect: The entire will may be held invalid or the court may sever a
provision unless to do so would violate the testator's intent
7. Ambiguity: Particular words/descriptions subject to multiple interpretations

a. No distinction between patent and latent ambiguities, and extrinsic evidence is
admissible to determine the meaning of a will or a portion of a will if the meaning is
unclear. However, Ca. will not allow extrinsic evidence involving specious and
fanciful reasoning in an attempt an attempt to give a meaning to the words of a will of
which the words are not "reasonably susceptible"
b. Kinds of evidence admissible:
1) The majority of courts will allow testator's oral declarations at time of execution.
2) Testator's oral declarations inadmissible with respect to any uncertainty in
meaning in will or description of gift
a) Exception: Testator's oral declarations always admissible to show
c. Falso demonstratio non nocet: A false description does not make the instrument
inoperative. The court may strike out the words.
d. Extrinsic evidence to show mistake: Mistakes as to legal effect of provisions can not
be corrected (supra), but they can be treated as ambiguities.
* Denotes testable issues
C. Legal Formalities: (rationale: Ritual/Evidentiary/Protective Nature of the Statute of Wills)
1. Formal will:
a) Will must be in writing
b) A testamentary document prepared on a California statutory will form, signed by the
testator and two witnesses, meets the general probate code requirements of §6110 for
executing a valid will even though the specific requirements for execution of a
statutory will form are not met.
c) Signature: Must be on the will, usually at the end to indicate the end of the body of
the will (Ca. does not require signature at end)
1) The will shall be signed either by the testator or by some other person in the
testator's presence and by the testator's direction
a) ESTATE OF STEPHENS (2002): Case of first impression. Involves
a deed, not a will, but may apply to wills. Issue: “Interested
amanuensis,” rule as an exception to probate code §4264(c) which
prohibits attorney’s-in-fact from making gifts of property to
themselves. Where the signing of the grantor’s name is done by
another person, that person is a mere instrument (amanuensis) of the

grantor and signature is valid even if not done in grantor’s presence.
2) Provisions located under signature, if added later, invalid (lack of due

execution) but original provisions above signature are arguably valid
(severance). Will provisions written under the signature line but before
the will is executed are valid since CA deleted the requirement that the
will must be signed at the end of the document.
d. Attestation by competent witnesses:

1) Requirements:
a) The will shall be witnessed by being signed by at least two persons
each of whom
(1) Being present at the same time, witnessed either the signing of
the will or the testator's acknowledgment of the signature of
the will and
(2) Understand that the instrument they sign is the testator's will
(3) ESTATE OF SAUERESSIG (2006):
The Court held that 6110 (c) requires attestation prior to
the testator's death. The signature of the notary's
husband did not satisfy the statute because it was
affixed after the decedent's death. Legislature did not
intend to permit post death subscription of a will. To
hold otherwise, would allow a witness to validate a will
that a deceased testator executed, but deliberately did
not have signed because of changed intent.
(4) Presumption that the will has been duly executed upon
proof of the signature of the testator and the witnesses
can be used when the witnesses are dead, unavailable,
unable to testify or recollect or are adverse or corrupt
b) The signing by the testator or the testator's acknowledgment of the

signature of the will must occur in the joint presence of the witnesses,
but Ca. does not require that the witnesses sign in the presence of each
other or in the presence of the testator
2) Qualifications of witness:
a) Competency determined at the time of the will's execution
b) Disinterested. If interested:
(1) Common law: Witness deemed incompetent and barred from
testifying. Will usually failed for lack of witnesses
(2) Modern: Purging statutes:
(a) Any person generally competent to be a witness may
act as a witness to a will
(b) A will or any provision thereof is not invalid
because the will is signed by an interested
witness. The fact that the will makes a devise to

a subscribing witness creates a rebuttable
presumption that the witness procured the
devise by duress, menace, fraud, or undue
influence. If the presumption is rebutted, the
person (interested witness) takes the gift under
the will. This is a presumption affecting the
burden of proof. If presumption cannot be
overcome, the witness will receive only that
share received by intestate or under the will,
whichever is less
(c) Supernumerary: If there is a witness(s) in excess
of the statutory requirement, those interested can
be disregarded as witnesses so long as sufficient
disinterested witnesses remain to satisfy the
statute. The interested witness will not be
purged
2. Holographic will
a. Requirements:
1) No particular form required (after January, 1983 only material portions
must be in writing)
a) Photocopies of a testator’s handwritten property dispositions
included in a holographic will and properly authenticated satisfy
the Probate Code §6111 requirement that the material
provisions be in the handwriting of the testator.
ESTATE OF BRENNER (1999)
b) Substantial compliance with the holographic statute and not absolute
precision is all that is required
2) Must be signed on the will (anywhere will suffice)

a) The way a testator signs a holographic will does not need to be
identical to a signature used to sign other legal documents
b) Decedent’s name in “block letters” at the top of the holographic
constituted a valid written signature
3) Date need not be accurate unless its deemed material

a) If no date exists on the holographic will and an issue is raised as
to whether the provisions of the holographic will control or
whether the provisions of another will control, the holographic
will is declared to be invalid to the extent it is inconsistent with
the other will unless the time of its execution is established to be
after the date of execution of the other will
b) Competent evidence exists that establishes the holographic will was
executed after the date of the execution of another will, the
holographic will controls

4) Testamentary intent: Problems arise when a handwritten letter contains
language of a testamentary gift. If the requisite testamentary intent is
established, such a letter could be admitted to probate as a holographic will.
The following factors should be considered:
a) Context: A letter otherwise devoted to mundane information generally
is not evidence of testamentary intent
b) Expression of future intent: Language conveying the writer’s future
testamentary intentions are not usually considered evidence the letter
was intended as a holographic will
5) Imminent death: Where writer faced danger of imminent death, courts more
liberal in finding testamentary intent
6) Statement of testamentary intent in holograph: Letter may contain statement,
i.e. “This is my last will and testament/last will etc...”
7) A symbol (i.e. A→ B) with no fixed meaning cannot replace words to prove
8) Use of term “my money” by testator raises the ambiguity of term
“money” so court will turn to rule of construction---does “money”
include investments (US. bonds, treasury bills, retirement savings
account, etc.) or simply cash or cash equivalents. See Est. of
Goyette 123 Cal. App. 4th 67 (2004) where court held the term “my
money” included all of the decedent’s financial assets. Note: the court
pointed out that if it had ruled differently, 50% of the estate would have
passed by intestacy. The court went on to stress the strong public
policy to avoid intestacy. This case involved a holographic will but
should also apply to formal wills as well.
9) Courts are to use “common sense” in evaluating whether a document
constitutes a holographic will
3. Conflict of laws
a. Probate Code §6113 provides that a will made out of Ca. is valid in Ca. if executed
in accordance either with:
1) Ca. law; or
2) The law of the state where executed; or
3) The law of the place where at the time of execution or at the time of death the
testator is domiciled, has a place of abode, or is a national
a) T is domiciled in New York which permits a will to be executed in
front of one witness and later acknowledged before a second witness
not present at execution. T signs his will in front of B, who signs as a
witness. The next day T acknowledges his signature to C who signs as
a witness. T moves to Ca. and dies. The will can be admitted to
probate in Ca. , but if T had been domiciled in Ca. on the date of
execution, the will could not be admitted
b. Descent of land is generally governed by the law of the situs state. Distribution of
personal property, both tangible and intangible, is generally governed by the law of
the decedent's domicile at his/her death

D. Contracts To Make A Will
1. Contract law governs: If the contract meets general standards for contracts it will be
valid. Writing required. Ca. circumvents the writing requirement using an estoppel
theory. For example, wife committing suicide based on belief husband's oral promise
would be binding. Court held wife's suicide was "serious change of position in reliance
on oral contract."
a. Failure to perform will won't invalidate the will but the estate may be liable for the
breach (specific performance) or court may impose constructive trust.
b. A contract to make a will or devise or other instrument, or not to revoke a will or
devise or other instrument, or to die intestate, if executed after 2001, can be
established only by one of the following:
1) Provisions of a will or other instrument stating material provisions of the
contract
2) An express reference in a will or other instrument to a contract and
extrinsic evidence proving the terms of the contract
3) A writing signed by the decedent evidencing the contract
4) Clear and convincing evidence of an agreement between the decedent and
the claimant or a promise by the decedent to the claimant that is
enforceable in equity
5) Clear and convincing evidence of an agreement between the decedent and
another person for the benefit of the claimant or a promise by the decedent
to another person for the benefit of the claimant that is enforceable in
equity
c. If a contract to make a will is breached prior to first death, no obligation exists on

the part of the second party to meet requirements
d. “Claimants deleted from will who are not intended beneficiaries of will
agreement cannot enforce that agreement.”
E. Joint/Mutual Wills
1. Defined:
a. Joint will: Will of two or more persons executed in the same instrument intended to
serve as the will for each
1) In a joint will once one party dies, the other is bound by its terms
b. Mutual will: Separate wills executed by two or more testators that contain
substantially similar provisions
2. Revocability: Revocable at any time unless made irrevocable by contract

a. The execution of a joint will or mutual wills does not create a presumption of a
contract not to revoke the will or wills

II. WHAT DOES THE WILL CONSIST OF?
A. Integration: Will written on more than one piece of paper
1. Formal will: All papers or writings which were actually present at the time of execution
and which testator intended to constitute the will
2. Holographic will: Liberal Ca. view allows several writings made at different times so
long as intended as will
3. General rule: Pages attached physically or connected by internal sense and continuity of
subject matter are part of the will (arguable issue)
a. Most courts allow extrinsic evidence
B. Codicil: A testamentary instrument executed subsequent to the execution of a will ordinarily

intended to expand, alter or modify the will. (Amendment) Same formalities required
1. Admissible to probate by itself. If will fails codicil may become will.

Example: Where codicil incorporates by reference a prior defective will and thereby
validates the instrument
2. Republication: Will is deemed to be republished with the codicil as of the date of the
codicil (“Will is made to speak again")
a. Courts use republication to effectuate the probable intention of the testator
C. Incorporation By Reference: Document is incorporated into the will by reference so that it is

considered part of the will. (no physical connection exists)
1. Requirements:
a. In existence (when the will/codicil is written):
1) Will must refer to and show intent to incorporate
2) That which is mentioned must be that which is incorporated
b. Identifiable: Document is in fact the document described

c. May not incorporate by reference a document to be written in the future
2. Incorporation in holographs: Most states allow holographs to incorporate by reference

printed or typed matter. Thus, a codicil can incorporate a defectively executed
typewritten will
D. Acts Of Independent Significance: Court may fill in "blanks" in a will by reference to an act or event
which will have significance apart from its significance to the will, i.e., Non-Testamentary motives
1. Examples: (Testable)
a. To identify beneficiaries: If act has independent significance from testamentary
motive, i.e., fifty dollars to the person providing the most expensive flower
arrangement at my funeral.
b. To identify gift: As long as it has independent significance from the purpose of
filling out the terms of T's will, i.e., the stocks in my bank safety deposit box go

to A.
c. Acts of third parties: i.e., my ABC stock is to pass accordingly to my wife's will.
2. Incorporation by reference: May still argue if the items were in existence when the will was
executed and referred to
3. Pour-Over trusts: Whereby testator attempts to pour over his probate assets into an inter
vivos trust as amended after execution of will
a. Modern law: "Uniform Testamentary Additions to Trusts Act" validates pour-over
trust
1) The statute permits the pour-over of estate assets to an inter vivos trust as
amended on the testator's death (or even after the testator's death), if the trust
is identified in the testator's will and its terms are set forth in a written
instrument (other than a will) executed before or currently with the execution
of the testator's will or in the valid last will of a person who has pre-deceased
the testator
2) The trust may be amendable or revocable and the settlor may be a trustee
3) The pour-over trust is deemed an inter vivos trust not a testamentary trust
III. IS VALIDITY OF WILL AFFECTED BY SUBSEQUENT EVENTS?
A. Revocation:
1. Subsequent Testamentary Instrument

a. Express revocation: A will may be revoked in whole or in part by the express
terms of a later will or codicil, whether or not the later will or codicil makes any
disposition of property
1) The revoking instrument must be duly executed with the formalities
required for execution of wills
2) Example: "I hereby revoke all prior wills made by me."
b. Implied revocation: A will may be revoked in whole or in part by implication from

the terms of a subsequent instrument. To the extent that a second will makes an
inconsistent disposition of property, the terms of the prior will are necessarily
superseded or nullified
1) Total Inconsistency: If the second will is totally inconsistent with the first,
the first will is revoked instantaneously and can no longer be admitted to
probate even if the second will is later revoked unless the testator intended
to revive the first will
a) A later will is deemed totally inconsistent with the earlier will if:
(1) None of the dispositive provisions are the same, and
(2) Provisions of the second will purport to make a complete
disposition of testator's estate.
2) Partial Inconsistency (superseded): The latter instrument prevails over the

first to the extent of the partial inconsistency. The earlier will is admitted

to probate along with the later instrument, and the earlier instrument is not
revoked, but is merely superseded as to the inconsistencies
a) If there is only a partial inconsistency and both instruments are admitted
to probate, mention of a child in either instrument is sufficient to preclude
a child's claim as an omitted heir, but, if the first instrument is revoked
due to total inconsistency, the failure to mention the child in the second
will may permit a claim as an omitted heir only if the child is born after
the execution of the last testamentary instrument or the decedent was
unaware of the child or mistakenly believed the child to be dead.
2. Physical Act: A will may be revoked by burning, tearing, cancellation, being defaced,
obliterated or destroyed with the "requisite intent"
a. The physical act must be accompanied simultaneously with the requisite intent. If the
act is done without such intent, no revocation occurs
b. Presumptions concerning revocation by physical act:
1) If a will is found mutilated among the testator's belongings after death, it
will be presumed that the testator did the act. However, the intent to revoke
will have to be established from the circumstances
2) If there is no direct evidence of the testator's intent, a presumption exists that
the testator destroyed the will with the intent to revoke if the will cannot be
found at death, and it was last known to be in the testator's possession
c. If testator destroys the will thinking it to be already invalid, the requisite intent is
lacking and there is no revocation
d. Revocation by third person requires destruction in presence of testator and at his
direction
e. Partial revocation: A partial revocation by act of destruction can be inferred from the
nature of the act performed. (Example: Testator crosses out a gift to Bob)
f. In a holographic will, the crossing out of and writing of a new provision constitutes
both a revocation of the altered provision and a valid new disposition. The prior
signature and date if any (date not required) are adopted when the alteration is made
g. Where a will has been executed in duplicate, an act of revocation on one of the
executed duplicates revokes the will, and the untouched copy. But, the destruction
of an unexecuted copy does not have the effect of revoking the executed will or
copy. When neither testator's will nor a "duplicate original” can be found after
the testator's death, the "duplicate original" does not include a photocopy not
personally signed by the testator and the witnesses
h. Revocation of codicil: Act of revocation performed on a codicil does not also serve
to revoke the will, even if intended. Act must be performed on the will itself to
revoke it
i. Revocation of will: The revocation of a will revokes all of its codicils
j. How much destruction is required?
1) Burning: Burning or singeing of any material portion of the will itself not just
the margin will constitute a revocation
2) Tearing: A material part re: dispositive words or signature revokes entire will
3) Obliteration: Defacing, erasing, inking out, must occur to a material part.

Defacing signature revokes the entire will
4) Cancellation: Drawing lines through a material portion of a will or through
provisions of a will. An "X" or "void" written across face of will is a
cancellation. A "void" written in the margin or on the back of the will is not
sufficient. However, marginal notations may constitute a valid holographic
will if signed. Date not required.
k. Increase by physical act not permitted: A cancellation or destruction cannot be used

to increase a gift . However, a decrease by striking a digit in a monetary gift may be
allowed. One cannot increase the gift, i.e., add a digit to a monetary gift, as this lacks
the requisite formalities (beware of Dependent Relative Revocation)
1) Exception: Where partial revocation by physical act is permitted, a residuary
gift can be increased by revoking a prior specific or general bequest by
cancellation
l. Lost or destroyed wills: A lost/destroyed will can be admitted to probate if it is

established that the testator had no intent to revoke and its contents can be proved by a
preponderance of the evidence and by a single witness
3. Operation Of Law
a. Marriage: If a person marries after the decedents execution of their last testamentary
instrument, and the spouse survives the maker but the spouse is not provided for, the
surviving spouse may take, in addition to his or her share of the community and
quasi-community property, his or her intestate share of the estate. The spouse's
intestate share of the separate property may not exceed one-half the value of the
separate property in the estate
1) The spouse does not receive a share of the estate if any of the following is
established:
a) The testator's failure to expressly provide for the spouse in the will
was intentional and that intention appears from the will
b) The testator provided for the spouse by transfer outside the will and
the intention that the transfer be in lieu of a testamentary provision is
shown by statements of the testator or from the amount of the transfer
or by other evidence
c) The spouse made a valid agreement waiving the right to share in the
testator's estate (must be in writing)
2) If the spouse takes his or her intestate share from the estate, in effect the
estate has been partially revoked by operation of law. Except with respect to
the surviving spouse, the will is not otherwise revoked
b. Children: Means of protecting children's share who have been unintentionally

omitted after the making of the decedent’s last testamentary instrument
1) The will is not revoked but the child shall receive a share in the estate
equal in value to that which the child would have received if the testator
had died intestate

a) A child does not receive a share of the estate if any of the following is
established:
(1) The testator's failure to provide for the child in the will was
intentional and that intention appears from the will
(2) When the will was executed, the testator had one or more
children and devised substantially all the estate to the other
parent of the omitted child
(3) The testator provided for the child by transfer outside the
will and the intention that the transfer be in lieu of a
testamentary provision is shown by statement of the testator
or from the amount of the transfer or by other evidence
*b) An omitted child born before the last testamentary instrument was
made does not receive a share of the estate unless the child is omitted
solely because the testator mistakenly believed the child to be dead
or was unaware of the birth of the child. When the omission is not
based on such mistaken belief, it is more likely than not that the
omission was intentional
c) §21620 does not protect omitted grandchildren or more remote issue
of a deceased child of the testator. If the testator's child is living
when the will is made and is a named beneficiary under the will and
dies before the testator leaving a child surviving, the testator's
grandchild will be protected by the antilapse statute which
substitutes the deceased child's issue
c. Divorce
1) Dissolution/annulment of the testator's marriage after execution of a will, if
it occurs after 1-1-85, automatically revokes all dispositions, and powers in
the will to the ex-spouse, unless the will provides otherwise. If the
dissolution/annulment occurs prior to that date, the ex-spouse's share is only
revoked if there is an express renunciation, either in the divorce/annulment
judgment or in any property settlement.
a) Remarriage to a former spouse revives any dispositions revoked
solely by this rule
b) When a testator provides for his spouse’s children, he normally
intends to exclude children of an ex-spouse after dissolution, unless a
contrary intention is indicated elsewhere in the will
2) When a domestic partnership is terminated it revokes any will the same as it

does for a married couple. Probate code sec. 6122.1
d) Forfeiture Statute
1) Probate Code §259 is a forfeiture statute that deems abusers of elders or
dependent adults to have predeceased the decedent. ESTATE OF LOWRIE
4. Dependent Relative Revocation: (Control Issue) The doctrine applies when a testator
revokes his will/gift upon a mistaken belief that another disposition of his property would

be effective; and but for the mistake would not have revoked his will/gift. (requires two
instruments)
a. Must have mistaken belief of law or of fact which induces revocation
b. When revocation occurs by reason of mistake of law or fact, revocation is held
to be invalid and that which was thought to be revoked is reinstated. The law
implies that testator's revocation was conditional, that it was dependent upon
and relative to the validity of the new testamentary disposition
c. The doctrine applies only if there is an ineffective alternative disposition. It does not
apply where T revokes his will by mistake and makes an effective new disposition
1) DRR applies in attempt to increase a gift but not to decrease a gift
d. DRR will apply to a revocation by subsequent instrument (with or without an

express revocation clause) to effectuate testator’s intent (majority rule). When
there is an express revocation clause, the mistake must appear on the face of the
later instrument or be inferable from the face of the two wills. The mistake
cannot be shown by extrinsic evidence, as it can be when the revocation is by
physical act. Remember, if the revoking instrument is defectively executed,
DRR does not apply because there has been no revocation.
e. DRR serves as a means of granting relief for a mistake in inducement in the
revocation of a will (supra)
f. DRR used to correct a mistake in the drafting of an estate plan.
g. Jurisdictional split:
1) Common law: Permits DRR only where revocation is by physical act
2) Modern law- majority rule: Permits DRR by subsequent instrument
3) Ca.: Permits a very broad application of DRR (to effectuate T’s intent)
h. CAVEAT: (Testable)
1) DRR may apply to one particular disposition as well as entire will
2) Doctrine used to effectuate testator's intent
B. Revival:
1. A theory allowing a revoked will to be probated because the revoking will was itself
revoked
a. Major issue - Testator executes Will #1. Testator subsequently executes Will #2.
Will #1 is either expressly or impliedly revoked. Then, testator revokes Will #2. Is
Will #1 revived?
b. Ca. looks to the Testator's intent, evidence to prove that intent, and the means
Testator used to revoke Will #2
c. If a second will which, had it remained effective at death, would have revoked the
first will in whole or in part, is thereafter revoked by physical act, the first will is
revoked in whole or in part unless it is evident from the circumstances of the
revocation of the second will or from the testator's contemporary or subsequent
declarations, that the testator intended the first will to take effect as executed
(presumption against revival)
1) §6123 permits the testator's intent that the first will be revived to be

shown by extrinsic evidence, thus producing results generally more
consistent with the testator's intent
d. If a second will which, had it remained effective at death, would have revoked the
first will in whole or in part, is thereafter revoked by a third will, the first will is
revoked in whole or in part, except to the extent it appears from the terms of the third
will that the testator intended the first will to take effect
1) Extrinsic evidence cannot be used to prove T's intent to revive Will #1
e. Revival of revoked wills: A revoked will is not revived unless republished by

codicil, incorporated by reference or re-executed with the same formalities of a
new will. Re-execution can be performed without writing a new will. Testator can
declare in front of two witnesses that the first instrument was his will,
acknowledge his signature, and have the witnesses attest by writing their names
under his
f. Republication by codicil: A revoked will which is still in physical existence, and

which has been validly executed originally, may be revived through publication of
a subsequent codicil. But, if the will has been revoked by physical destruction, it
cannot be republished because one cannot declare an instrument not in existence to
be his will. If the first instrument was never valid it cannot be republished (beware
of Incorporation by Reference)

IV. HOW IS THE PROPERTY TO BE DISTRIBUTED?
A. Order Of Payment Of Claims: Payment of debts, funeral expenses, taxes, expenses of administration,
and family advances must all be provided for before the estate can be distributed to the interested
beneficiaries
B. Definition:
1. Devise: Any disposition of real/personal property

2. Bequest (legacy): Gift of personal property
C. Classification Of Gifts:
1. Specific: Gift of particular identifiable item ("My 100 shares of ABC stock")
2. General: Gift out of general estate ("100 shares of ABC stock to A")
3. Demonstrative: General legacy payable first from particular property and then out of the
estate if that property is insufficient
4. Residuary gift: A gift of what remains of testator's property after first paying debts,
expenses, and taxes and secondly, after specific, general and demonstrative gifts. “All of
my estate” is a residuary gift.
* Look to T's intent
D. Ademption: A specific legacy or devise is adeemed when the specific property given is not part
of the testator's estate at the time of death. Rule of ademption is based upon an assumption that T
intended ademption when the item is not in his estate at death. Two ways to argue gift should not
be adeemed:
1. Classify the gift as demonstrative or general

2. Classify inter vivos disposition as change in form not substance.
(Automobile destroyed changes to insurance proceeds, i.e., form only.)
Issue: Has there been more than a change in form? Example: A changes bank account
from Z bank to Y
3. Construe will at time of death
4. Increasing minority of states do not apply ademption where the subject of a specific
devise is not in the estate at death if:
a. Assets of the estate are traceable to the property described in the devise, and
b. It is not shown that the testator intended to adeem the gift
E. Satisfaction By Inter Vivos Gift: Specific, general or demonstrative gifts may be satisfied in
whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the
execution of the will, if the testator intends the transfer to have that effect
1. Ca. requires a writing signed by the transferor at the time of or before the transfer

F. Abatement: Reduce gifts to beneficiaries under a will because the testator's estate is not
sufficient to pay all estate obligations, bequests and devises
1. General rule: Unless testator has made provisions to the contrary, order of abatement is as
follows:
a. Intestate property
b. Residuary gifts
c. General bequests—abate on a pro rata basis in accordance with the % of the estate
that each gift represents
d. Demonstrative bequests—abate on a pro rata basis in accordance with the % of the
estate that each gift represents
e. Specific bequests - last to abate
G. Increases In Property Value:
1. During T's Lifetime:

a. At-Death Transfer of Securities:
1) The focus is at the time the will was executed, whether the testator owned
the shares of the stock bequeathed in the will. If so, the beneficiary
receives any increase or change in the stock that is the result of action
initiated by the corporate entity or another corporate entity (merger). If the
testator did not own the bequeathed shares at the time the will was
executed, the beneficiary receives only the number of shares specified in
the will.
a) Example: If T owned 100 shares of ABC stock at the time the will was
executed, the beneficiary takes 200 shares of ABC stock as a result of the
stock split. But if T did not own any shares of the ABC stock when the
will was executed, the beneficiary takes only 100 shares.
2) It the testator makes a specific gift of only a portion of the stock and the
testator owns in a particular company and there is a stock split or stock
divided, the specific beneficiary is entitled only to a proportionate share of
the additional stock received.
a) Example: If transferor owns 500 shares of stock and transfers 100 shares
to a child, and the stock splits two for one, the child is entitled to 200
shares.
b. Stock Dividend
1) Treated the same as stock splits. If, at the time the testator executed the
will, the testator owned shares of stock matching the shares being
bequeathed, the beneficiary takes the additional shares produced by the
stock dividend. If the testator did not own matching shares of stock at the
time the will was executed, the beneficiary will not take any additional
shares produced by the stock dividend

2. After T's death - Interests/Profits:
a. Specific gifts: Carries with it right to earnings or profits produced by particular
property subsequent to date of T's death
1) Stock dividends controlled by ownership on stockholder of record date.
Residuary estate could benefit as opposed to beneficiary
b. General gift: Earn interest at legal rate beginning one year after death of T
c. Residuary gift: No interest permitted
H. Exoneration: T devises land subject to a mortgage, lien or encumbrance on which T is personally

liable. A specific gift passes the property subject to any mortgage, deed of trust or other lien
without right of exoneration. This is true, despite a will provision to pay testator's debts. Note,
however, that the testator can always indicate his intent (e.g., in the will) to require exoneration.
I. Lapse Statute: When a devisee/legatee dies after a testator executes his will but before T dies, the
gift to him lapses (fails) in the absence of testamentary or statutory provisions to the contrary (a
dead person can not take any property interest)
1. Effect of lapsed gift:

a. Look for alternative gift - Example: To A but if he dies then to B
b. If no alternative then specific, general devises and bequests which lapse fall into
residuary estate
c. If lapsed gift is residuary gift, property passes intestate. There can be no residue
of a residue
1) Example: T devises residue of estate in equal shares to A and the YMCA.
A dies before T. Result: One-half to YMCA, one-half to T's heirs
* JANUARY 1985 CHANGE: Under prior law, if a residuary clause

makes a gift to two or more named persons and one predeceases the
testator, the antilapse statute is first applied to make substitution for the
pre-deceased beneficiary. If the residuary gift does not fall within the
antilapse statute, the gift passes by intestacy. This bill provides that,
subject to the antilapse statute, the failed gift passes to the surviving
residuary beneficiaries. Ca. keeps the failed residuary gift in the residue to
be given to the remaining residuary beneficiary
2. Void gifts: If legatee/devisee is dead at time T executes his will, gift is void.
Consequences same as lapsed gift
3. Class gift: Used to avoid lapse. Thus members of a class who survive T split gift. A class
is a group of two or more persons who share some common characteristic. Court may
declare a class valid if convinced that T would have intended that survivors take whole
("group minded")
4. Anti-Lapse statutes: Inheritance by descendants of predeceased devisee/legatee
a. Statute applies only to a gift to any kindred-devisee of Testator. Devisee means
kindred of the testator or kindred of a surviving, deceased, or former spouse of the

testator, note: a spouse is not kindred!
b. Applies only where devisee/legatee leaves lineal descendants. Lineal includes
adopted children by devisee/legatee
c. When applied, substitute lineal descendants for devisee/legatee (issue of deceased
devisee takes in his place by representation)
d. Applies to void, lapse, and class gifts (unless the devisee’s death “occurred before
the execution of the will and that fact was known to the testator” when executing
the will)
1) Does not apply if will expresses a contrary intention or a substitute disposition
*e. One cannot claim as omitted heir and under the antilapse statute
f. Diagram
Testator Kindred Devisee/Legatee (Lapse)
Lineal Descendants
Child (Anti-Lapse)
J. Survivor Rights:
1. Review: Community property/Quasi-Community property/Community property with right of

survivorship rules
2. Pretermitted (Omitted) child: (crossover with revocation by operation of law, supra)
Means of protecting children who have been unintentionally omitted born after the
making of the last testamentary instrument
a. Effect is children take intestate share. The share will be taken from the decedent’s
estate not disposed of by will or trust, if any. If that is not sufficient, so much as may
be necessary to satisfy the share shall be taken from all beneficiaries of decedent’s
testamentary instruments in proportion to the value they may respectively receive.
The value shall be determined as of the date of the decedent’s death.
1) If the obvious intention of the decedent in relation to some specific
gift or devise or other provision of a testamentary instrument would be
defeated by the application above, the specific devise or gift provision
of the testamentary instrument may be exempted from the
apportionment above, and a different apportionment, consistent with
the intention of the decedent, may be adopted.
b. Major issue: "intention to leave out child must not appear on face of the will, i.e., "I
leave Jeff $1"
1) Parol evidence admissible to show lack of intent to disinherit

(T mistakenly believed child is dead)
c. Adopted children and children born out of wedlock can qualify as omitted heirs
* JANUARY 1985 CHANGE: This bill eliminates protection for a child born before
the will was made unless the testator believes the child is dead or was unaware of the
birth of the child. In addition, protection is limited to omitted children of the testator;
it does not extend to omitted grandchildren or more remote issue of the testator
d. See revocation by operation of law, supra page 21
3. Pretermitted (Omitted) spouse: Means of protecting spouse when an individual marries

after making of the last testamentary instrument and does not mention the spouse. The
surviving spouse of a decedent, who is omitted from the decedent's will, is a
pretermitted spouse if the marriage occurred after the execution of the will. If omitted,
the spouse may take, in addition to his or her share of the community and quasi-
community, his or her intestate share of the estate. Exceptions: (a) the will expressly
and intentionally omitted the spouse and that intention appears from the will (b) there
was a transfer to the spouse, outside of the will, that was intended to be in lieu of a gift
in the will (c) the spouse executed a valid waiver of any inheritance right
a. Effect is spouse takes intestate share of estate
b. See revocation by operation of law, supra page 20
4. Slayers: (facts will indicate beneficiary kills testator)

a. Major issue: Does beneficiary inherit?
b. Ca. view is that slayer does inherit but a constructive trust is imposed to prevent
slayer's unjust enrichment
* JANUARY 1985 CHANGE: This bill would disqualify a person from taking from
the victim only if the killing was felonious (without legal justification) and
intentional. It would also apply a civil standard of proof and the accused's acquittal
in the criminal trial would not be admissible in the determination of the accused's
right to take under the decedent's will. A conviction in a criminal case is binding on
the probate court.
c. January change applies only to deaths after January 1, 1985
V. HAS BENEFICIARY RENOUNCED RIGHTS UNDER WILL?
A. Release:
1. Heir may release interest under will to the decedent

2. Release binding on heirs as long as adequate consideration/reliance by decedent
B. Beneficiary is prevented from disclaiming a gift under the will if the beneficiary exercises control
over the gift, which conveys more than a de minimus benefit to the beneficiary or a third party.

1. Requires a fact-sensitive inquiry by the court that centers on:
a. Conduct of the beneficiary that evidences an implicit acceptance of the inheritance
b. The result deriving from the beneficiary’s conduct (more than a de minimus benefit
to beneficiary/3rd party). A beneficiary may disclaim a gift in whole or in part. A
contingent interest under the will may be accepted by the beneficiary prior to the
time that interest vests, at least for purpose of preventing the beneficiary from
subsequently disclaiming an interest under the will.
VI. HAS THERE BEEN A PARTIAL FAILURE OF WILL?
A. Intestate Succession: Any part of estate not effectively disposed of by will
CAVEAT - Must classify property in order to determine intestate distribution

1. Community property
a. Decedent's share of community property passes to the surviving spouse in the
absence of a will (thus, surviving spouse receiving 100%)
1) 1990 Change: Community property will be evenly divided among each
spouse's heirs in cases in which spouses die within 120 hours of each other.
Formerly, the heirs of the spouse who died last received all of the
community property
2) A judgment of legal separation resolves the “financial issues between the
parties, including division of community assets.” A spouse who receives
judgment of legal separation does not qualify as a “surviving spouse” for
purposes of intestate succession
b. ESTATE OF MIRAMONTES-NAJERA (2004): By enacting Probate Code §5021

the legislature codified the judicially established rule that a surviving spouse who did
not consent to transfer of community property to bank accounts for 3rd parties may
enforce his/her community property rights on an asset by asset basis even though the
surviving spouse is already receiving more than 1/2 of the total community property
c. Quasi-Community property of an intestate passes to the surviving spouse

1) Quasi-Community property is any property (other than land outside the state)
owned by either spouse that was acquired while they were domiciled in
another state, and which would have been characterized as community
property had it been acquired while the couple was domiciled in Ca.
2. Separate property
a. If decedent's spouse or domestic partner survives:
1) One-third: To spouse if decedent is survived by more than one child or one
child and issue of deceased child or issue of two or more deceased children.
Remaining two-thirds divided equally by representation
2) One-half: To spouse if decedent is survived by only one child or the issue of a
deceased child or no issue, but a parent or a descendant of a parent
3) All: To spouse if decedent leaves no other lineal heirs

b. The rest of the property, or all if no spouse survives, passes:
CAVEAT: As of 1990, an heir must survive a decedent by 120 hours to take by intestate
succession (applicable to estate of persons dying after December 31, 1989)
c. Mnemonic:
I PIG IN PE
I - Issue (children)
P - Parents (mom & dad)
I - Issue of Parents (brother & sisters)
G - Grandparents (if none to issue of grandparents, aunt/uncle)
I - Issue of pre-deceased spouse (stepchildren)
N - Next of kin (cousins)
P - Parents of pre-deceased spouse
E - Escheat
1) If ISSUE of the decedent survive to the issue of the decedent; if they are all
of the same degree of kinship to the decedent they take equally, but if of
unequal degree, then those of more remote degree take by representation
(children.) Descendants of a living descendant are excluded as takers
2) If no issue survive - to the decedent's PARENTS equally or to the surviving
parent (mother & father)
3) If no issue or parent survive - to decedent's BROTHERS and SISTERS
taking his or her share by representation if of unequal degree (brothers &
sisters)
4) If no issue, parent, or issue of a parent survive - to the decedent's
GRANDPARENTS equally or ISSUE OF GRANDPARENTS if there is
no surviving grandparent, with the issue taking by representation if of unequal
degree (grandparents/aunt/uncle)
5) If no issue, parent, issue of parent, grandparent, or issue of grandparent
survive to ISSUE of decedent's PRE-DECEASED SPOUSE, with the issue
taking by representation if of unequal degree (stepchildren)
6) If no issue, parent, issue of parent, grandparent, issue of grandparent or issue of
pre-deceased spouse to the NEXT of KIN in equal degree (cousins)
(a) Recent case Estate of McCrary (1997). Intestate estate passed to 4
maternal first cousins and the issue of 14 predeceased paternal first
cousins
7) If no issue, parent, issue of parent, grandparent, issue of grandparent, issue of
pre-deceased spouse, or next of kin to the PARENTS of a
PRE-DECEASED SPOUSE or the ISSUE of such PARENTS if the
parents are deceased, with the issue taking by representation if of unequal
degree

8) If the intestate leaves neither spouse nor kin the property ESCHEATS to the
State
* JANUARY 1985 CHANGE: Issue of a pre-deceased spouse may inherit
before kindred of the decedent more remote than grandparents (and the issue
of the grandparents of the decedent)
9) The rules for determining intestate succession under PC 21115 are those in
effect at the time the transfer is to take effect
d. CAVEAT:
1) Per Stirpes: If the issue are not of the same degree of kinship to decedent,
they take "by right of representation" (step into shoes)
a) Shares determined at first generational level where there are living
persons and deceased persons who left lineal descendants.
2) Per Capita: If the issue are all of equal degree of kinship to the decedent (all
are of the same generation), they take equally.
a) Y is survived by three children, C, D and E. C, D and E each take
one-third of Y's estate.
e. Root Level:
1) Pre 1985 - closest living or dead generation to deceased ("Pure" per stirpes)
2) Post 1985 - closest living generation to deceased (per capita with right of
representation)
f. AB 2216 lets domestic partners inherit a partner’s property if the partner dies
without a will. Domestic partners must be registered with the secretary of state.
3. Ancillary rules
a. Simultaneous death: Where order of death cannot be established by clear and
convincing evidence, the property of each person shall be disposed of as if he had
survived, unless the decedent provides otherwise by will; i.e., decedent presumed to
have survived beneficiary (transferor survives transferee)
1) Example: A and B, father and son die in plane crash. A's property is
distributed on the assumption that his son B died first, so proceeds go to
alternative beneficiary, intestate, or if none, the state. Likewise, B's estate is
distributed as if A had died first
2) JANUARY 1985 CHANGE: If a husband and wife die leaving community
or quasi-community property and it cannot be established by clear and
convincing evidence that one spouse survived the other
a) One-half of the community property and one-half of the
quasi-community property shall be administered upon or distributed,
or otherwise dealt with, as if one spouse had survived and as if that
half belonged to that spouse.
b) The other half of the community property and the other half of the
quasi-community property shall be administered upon or distributed,

or otherwise dealt with, as if the other spouse had survived and as if
that half belonged to that spouse.
3) If property is so disposed of that the right of a beneficiary to succeed to any

interest in the property is conditional upon surviving another person and it
cannot be established by clear and convincing evidence that the beneficiary
survived the other person, the beneficiary is deemed not to have survived
the other person.
4) If the insured and a beneficiary under a policy of life or accident insurance
have died and it cannot be established by clear and convincing evidence
that the beneficiary survived the insured, the proceeds of the policy shall be
administered upon or distributed, or otherwise dealt with, as if the insured
had survived the beneficiary.
5) Undivorced bigamous spouse cannot assert inheritance rights as a surviving
spouse against estate of spouse who died intestate.
6) Not applicable in the case of a trust, deed or contract of insurance or any other
situation where a provision is made dealing explicitly with simultaneous
deaths or deaths in a common disaster. Prob. Code 221.
b. Adopted child: For purposes of succession, an adopted child is deemed a

descendant of the person who adopted her, the same as a natural child. She inherits
from the adoptive parents and from their relatives; they inherit from her.
1) In Ca., an adopted child does not inherit from her natural parents nor from
their relatives, nor do they inherit from her unless
a) The natural parent and adopted person lived together at any time as
parent and child, or the natural parent was married to, or cohabiting
with, the other natural parent at the time the child was conceived and
that parent died before the birth of the child; and
b) The adoption was by the spouse of either of the natural parents of the
adopted person or after the death of either of the natural parents.
2) Neither a natural parent nor a relative of a parent (except for a wholeblood

brother or sister of the adopted person or the issue of such brother or sister)
inherits from or through the adopted person on the basis of a parent and
child relationship between the adopted person and the natural parent unless
the adoption is by the spouse or surviving spouse of that parent.
3) Judicial Doctrine of Equitable Adoption §6455:
a) Equitable adoption applies to those who though having filled the
place of a natural born child, through inadvertence or fault have not
been legally adopted, so long as evidence establishes an intent to
adopt
b) Clear and convincing evidence standard;
c) Not based on quasi-contract for services rendered to the parent nor
on basis of unjust enrichment of other, more distant relatives who
will take by intestacy;
d) Based on contract principles
(1) Requirements:

(a) Statement/act unequivocally showing decedent's intent
to adopt claimant
(b) Decedent acted consistent with the intent by forming a
close and enduring familial relationship with claimant
(c) Doctrine does not recognize an estoppel arising merely
from the existence of a familial relationship between
the parties
(d) A “legal barrier” must exist that prevents the person
from being legally adopted.
c. Children born out of wedlock: In all states illegitimates are recognized as heir of
their mothers. Some states do not recognize illegitimate children as heirs of their
father unless acknowledged by him and contributed to the support or care of the
child (the statute does not define “acknowledge”. The word’s common meaning is:
to admit to be true or as stated, to confess)
1) Look for a parent/child relationship established as to father regardless of
marital status. A rebuttable statutory presumption of paternity that applies
when man and mother are married and child is born during marriage or
within 300 days after marriage is terminated does not require any proof of
cohabitation; rather the only predicate is birth during a valid marriage or
with 300 days after marriage is terminated
a) There is a conclusive presumption that a child of a wife cohabitating
with her husband, who is not impotent or sterile, is a child of the
marriage
b) A woman is presumed to be the natural mother if the child is in utero
after the death of the decedent and conditions of Sec. 249.5 of the
Probate Code are satisfied.
2) §6452 prevents “a natural parent or a relative of that parent from inheriting

through a child born out of wedlock unless the parent or relative
acknowledged the child and contributed to the child’s support or care.”
3) Half siblings of a child born out of wedlock may share in the child’s
intestate estate where the father admitted paternity and paid court ordered
child support. ESTATE OF GRISWOLD C.A. 4th (2001)
4) The issue of a child born out of wedlock do not inherit from or through their
parent.
d) Foster parent or stepparent: The relationship between a person and her foster
parent, and between a person and her stepparent, has the same effect as if it was an
adoptive relationship if "the relationship began during the person's minority and
continued throughout the parties' joint lifetimes" and if it is shown by clear and
convincing evidence that the foster parent or stepparent "would have adopted the
person but for a legal barrier"
1) ESTATE OF CLAFFEY C.A. 4th (1989) The C.A. 4th has held that a
trial court did not err in instructing a jury that a "family relationship" rather
than a stepchild/stepparent relationship is required as a prerequisite to

stepchildren's intestate succession.
2) Family Code §9000(f) includes Domestic Partner adoption.
4. Advancements: An irrevocable intervivos gift by a person to his heir with the intention
that such gift shall represent a part or the whole of the portion of the donor's estate that the
donee would be entitled to on the donor's intestate death
a. Intention of grantor is controlling element
1) At death transfers” applies to trusts not just wills.
b. Arises only where decedent dies intestate

c. Ca. requires a writing
d. Example: T leaves $100,000. Advances $20,000 to C-1, C-2 gets $40,000 and C-3
gets $40,000. Hotchpot = $120,000. It is divided by 3 which is $40,000 for C-2 and
C-3 and C-1 $20,000
e. Hotchpot. Effect of advancement is determined by computing the total intestate

estate and then comparing that to the amounts given intervivos. This total estate is
called the “hotchpot.” Where the advancement to a particular heir exceeds that heir’s
share of the hotchpot, that heir and the advancement is excluded from the hotchpot
1) The value of the advancement is determined at the time of receipt or at death of
testator whichever happens first. An heir cannot be forced into hotchpot
5. Code of Civil Procedure §366.2 (a) provides for an outside time limit of one year for filing
any type of claim against a decedent. This uniform one-year statute of limitations applies
to actions on all claims against the decedent which survive the decedent’s death.
6. Required notice under Probate Code §8110 reasonably ascertainable is to be given a broad
meaning sufficient to include individuals:
a. Whose identities are known to petitioner
b. Who reasonably might be heirs
7. Gifts in View of Impending Death

a. Essentials: intent, delivery, and acceptance (subject to general law relating to gifts
in Property)
b. A verbal gift is not valid unless the means of obtaining possession and control of
the property are given or if the property is capable of delivery, unless there is
actual constructive, or symbolic delivery of the property to the donee. Civil Code
Sec. 1147
c. A deferred gift in view of impending death is one made in contemplation, fear or
peril of impending death, whether from illness or other cause, and with intent that
it shall be revoked if the giver recovers from the illness or escapes from the peril
d. If the giver intends the gift to become absolute only upon the giver’s death, with
title passing at the instant of death (condition precedent) the gift is testamentary
e. If the condition is subsequent, with the donee’s title vesting immediately on
delivery, subject to revocation if the giver survives the peril, the gift is not

testamentary and can be sustained
f. A gift in view of impending death is not nullified because the giver dies by
suicide
g. Presumption of a gift in view of impending death…a gift made during the last
illness of the giver, or under circumstances which would naturally impress the
giver with an expectation of speedy death is presumed to be a gift in view of
impending death
h. A gift in view of impending death is revoked by the giver’s recovery from the
illness or escape from the peril under the presence of which it was made
i. The death of the donee before the giver…a gift in view of impending death
may be revoked by the giver at any time
j. The gift may be revoked by the giver’s will if the will expresses an intent to
revoke the gift (gift is not affected by a previous will of the giver)
k. If the gift is delivered to the donee the rights of a purchaser or encumbrancer,
acting before the revocation in good faith, for a valuable consideration and
without knowledge of the conditional nature of the gift are not affected by the
revocation

WILLS APPROACHES
What Does The Will Consist of?

Validity
1. Intent 1. Integration
2. Capacity 2. Codicil
3. Formalities 3. Incorporation By Reference
A. Formal Will 4. Independent Significance
B. Holographic Will
Revocation Distribution
1. Subsequent Testamentary Instrument 1. Testate
2. Physical Act 2. Intestate

3. Operation of Law
* Dependent Relative Revocation/Revival

WILLS
QUESTION #1
Tess was a widow with two adult children: Sam, from whom Tess was estranged, and Donna,
to whom Tess was devoted. In 1992, Tess validly executed a typewritten will containing the
following provisions:
A. My Bigco stock to my friend, Fred.
B. The residue of my estate to my daughter, Donna.
During the next few years Tess and Sam reconciled. In 1995, Tess prepared another
typewritten will containing the following provisions:
A. I hereby revoke all prior wills.
B. My Bigco stock to my son, Sam.
C. The residue of my estate to my daughter, Donna.
Tess took this will to the house of Wit, a neighbor, declared to Wit that it was her will, and
signed the will in Wit's presence. Wit then signed the will as witness, although he did not know
its contents.
Tess next took the will to the house of Ness, another neighbor, and asked Ness to "witness
this paper." Ness signed the will as witness, although he did not understand that it was a will.
After Tess's death, both wills were found in her safe deposit box. The 1992 will had a large
"X" drawn across all of its pages. The 1995 will was unmarred.
Tess is survived by Donna, Sam and Fred. Her net estate consisted of her Bigco stock (worth
$400,000) and $600,000 in cash.
1. Is Tess's 1995 will valid? Discuss.
2. How should Tess's estate be distributed, assuming Tess's 1995 will is not valid?
Discuss.
Assume that the applicable statutory law is the same as that of California.

WILLS
MODEL ISSUE LIST QUESTION #1
1. Is Tess’s 1995 Will Valid?
A. Formal Will
1) Writing
2) Signature on Will- Signed either by testator or some other person in Testator's

presence and by Testator's direction
3) Attested by Competent Witnesses
4) Two Witnesses -Each of who are present at the same time witness either the signing
of the will or Testator's acknowledgment of the signature of the will?
5) Witnesses understand the instrument they sign is Testator's will?
2. How Should Tess’s Estate be Distributed, Assuming Tess’s 1995 Will is Not Valid?
A. 1992 Will
1) Valid Formal Will
2) Expressed Revocation
a. Subsequent Testamentary Instrument- Invalid
3) Revocation
a. Physical Act Valid
4) Dependent Relative Revocation?
5) Distribution- Intestate Succession

a. One-half to S & One-half to D
b. Nothing to F

WILLS
QUESTION #2
Theresa and Henry were married and had one child, Craig. In 1990, Theresa executed a valid
will leaving Henry all of her property except for a favorite painting, which she left to her sister,
Sis. Theresa believed the painting was worth less than $500.
On February 14, 1992, Theresa typed, dated, and signed a note, stating that Henry was to get
the painting instead of Sis. Theresa never showed the note to anyone.
In 1994, Theresa hand-wrote a codicil to her will, stating: "The note I typed, signed, and
dated on 2/14/92 is to become a part of my will." The codicil was properly signed and witnessed.
In 1995, Theresa's and Henry's second child, Molly, was born. Shortly thereafter, Henry,
unable to cope any longer with fatherhood, left and joined a nearby commune. Henry and
Theresa never divorced.
In 1999, Theresa fell in love with Larry and, with her separate property, purchased a
$200,000 term life insurance policy on her own life and named Larry as the sole beneficiary.
In 2000, Theresa died. She was survived by Henry, Craig, Molly, Sis, and Larry.
At the time of her death, Theresa's half of the community property was worth $50,000, and
the painting was her separate property. When appraised, the painting turned out to be worth $1
million.
What rights, if any, do Henry, Craig, Molly, Sis, and Larry have to:
1. Theresa's half of the community property? Discuss.
2. The life insurance proceeds? Discuss.
3. The painting? Discuss,
Answer according to California law.

WILLS
MODEL ISSUE LIST QUESTION #2
1. Theresa's Half of the Community Property?

A. Valid 90 Will- T left H all of her property except for a favorite painting, which she left to
her Sis
B. Revocation by Operation of Law:

1) Omitted Heir- Craig born before the making of the will- Not omitted
2) Omitted Heir-Molly born after making of the will- Not omitted as T had a living child
(C) and all or substantially all of her estate was given to H the other parent of Molly
3) Divorce will revoke H's interest in T's will. H and T separated but never divorced
C. Distribution- A spouse has the right to will away one-half of their community property
and all of their separate property, The 90 will left all T's community property to H. H is
entitled to T's half of the community property worth $50,000. C, M, S, and L have no
rights.
2. Life Insurance Proceeds?

A. Separation- In California, once spouses separate with no intent to reconcile, all property
acquired is separate property. Each spouse has full management and control over their
separate property.
B. In 1995, H and T separated but never divorced. In 1999, T fell in love with L, and, with
her separate property, purchased a $200,000 term life insurance policy on her own life
and named L as sole beneficiary.
C. Life insurance policy could serve as a will substitute as no formalities are required. The
policy would payable on death to L and pass outside T's will.
D. Distribution- The life insurance proceeds pass to L. H, C, M, and S have no rights.
3. The Painting?
A. Valid 90 Will- T left H all of her property except for a favorite painting, which she left to
her Sis
B. What does the will consist of?

1) Codicil- February 14, 1992 - Invalid
2) Codicil- 1994 handwritten codicil valid stating H was to get the painting instead of S
a. Incorporation by reference- The 94 codicil has incorporated by reference the 92
note. It will be distributed as part of T's will.
C. Effect of Mistake- T believed the painting was worth less than $500 when she wrote her
will in 1990. At the time of T's death in 2000, the painting appraised value was $1
million. Since the mistake was only as to the painting's value, no relief will be granted
D. Distribution - The painting passes to H. C, M, S, and L have no rights.

WILLS
QUESTION #3
In 1998, Tom executed a valid will. The dispositive provisions of the will provided:
“1. $100,000 to my friend, Al.
2. My residence on Elm St. to my sister Beth.
3. My OmegaCorp stock to my brother Carl.
4. The residue of my estate to State University (SU).”
In 1999, Tom had a falling out with Al and executed a valid codicil that expressly revoked
paragraph 1 of the will but made no other changes.
In 2000, Tom reconciled with Al and told several people, "Al doesn't need to worry; I've
provided for him."
In 2001, Beth died intestate, survived only by one child, Norm, and two grandchildren, Deb
and Eve, who were children of a predeceased child of Beth. Also in 2001, Tom sold his
OmegaCorp stock and reinvested the proceeds by purchasing AlphaCorp stock.
Tom died in 2002. The will and codicil were found in his safe deposit box. The will was
unmarred, but the codicil had the words "Null and Void" written across the text of the codicil in
Tom's handwriting, followed by Tom's signature.
Tom was survived by Al, Carl, Norm, Deb, and Eve. At the time of Tom's death, his estate
consisted of $100,000 in cash, the residence on Elm St., and the AlphaCorp stock.
What rights, if any, do Al, Carl, Norm, Deb, Eve, and SU have in Tom's estate? Discuss.

WILLS
SUGGESTED MODEL ANSWER QUESTION #3
RIGHTS OF AL, CARL, NORM, DEB, EVE AND SU IN TOM’S ESTATE
Validity Of 1998 Will
The facts indicate Tom executed a valid will containing the dispositive provisions. Al, a friend,
was to receive $100,000, Beth, his sister, was to receive Toms residence on Elm Street, Carl, his
brother, was to receive Toms OmegaCorp stock and the residue was to go to State University.
Thus, a valid formal will was created and it satisfied all requisite legal formalities.
Effect Of Tom’s Valid 1999 Codicil On His Valid 1998 Will
A valid codicil has the effect of republishing the will as of the date of the codicil. The original
will is modified to the extent that the codicil expressly or impliedly revokes any part of the will.
In 1999, Tom executed a valid codicil that expressly revoked the 1998 will provision giving
"$100,000 to my friend, Al". The rest of the will is republished as of the date of the codicil.
The will provision giving $100,000 to Al was expressly revoked by the valid codicil. Unless this
provision is revived, the $100,000 becomes part of the residue for State University.
Revocation Of The 1999 Codicil
A. Revocation By Physical Act
When a codicil is last known to be in the possession or the testator, and testator remains
competent until death, any physical act performed on the codicil is presumed to have been done
by the testator. A codicil may be revoked by a physical act coupled with a simultaneous intent to
revoke.
The codicil was found in Tom’s safe deposit box. Apparently, Tom is the only person to have had
access to the box. Nothing in the facts indicate that Tom was not competent at the time of death.
The writing of "null and void" across the text of the codicil is presumed to have been done by
Tom. Tom's signature further supports this contention and resolves the ambiguity as to who wrote
the words of revocation.
Writing ''null and void" in words across the text, which is a material part of the codicil, qualifies
as a valid physical act with a simultaneous intent to revoke the codicil.
B. Revocation By Subsequent Testamentary Instrument
A weaker argument may be made by contending that the words “null and void” along with Tom’s
signature was a valid revocation by a holographic instrument. This would require that the
material provisions of the revocation be in Tom’s handwriting and signed by Tom. The facts

indicate that "null and void" had been "written" across the text and it was signed by Tom.
However, "null and void" has no meaning standing alone i.e., what is being made null and void?
To answer this question, one would have to refer to the words of the codicil. If the codicil was a
holograph, the words of revocation would be sufficient standing alone. However, if the codicil is
a formal typed codicil then reference to the typed text would be prohibited since the material
provisions would not be entirely in the testator's handwriting.
The better view would be that the codicil has been validly revoked by Tom’s physical act of
writing "null and void", touching the text of the codicil, with the simultaneous intent to revoke.
Revival Of $100,000 Gift To Al
When a codicil, which expressly revokes a provision in a will is subsequently revoked, the
original provision is revived if the testator intended to have it revived.
Tom revoked the codicil, which had expressly revoked Al's gift. The court will seek to determine
if Tom’s intention was to reinstate the gift to Al. Extrinsic evidence, including contemporaneous
statements will be admitted to ascertain Tom’s intent.
Tom and Al had experienced a falling out which resulted in Tom executing the codicil to revoke
the provision for Al. However, the facts indicate that they reconciled and Tom stated to several
people that "Al doesn't need to worry; I've provided for him". This statement must relate to Tom’s
act of revoking the codicil since Al, who is only a friend, would not be provided for unless the
original will provision was reenacted.
Tom's statement is sufficient for the court to find that Tom intended to revive the original
provision for Al when Tom revoked the codicil. Al will receive the $100,000.
Lapse
A lapsed gift is one that was valid when the will was executed, but which fails due to the
subsequent death of the beneficiary during the testator’s lifetime.
Tom's will gave the Elm Street residence to Beth. Beth died in 2001. Tom died in 2002 without
changing the provision for Beth. At common law, the gift to Beth would lapse and pass by the
residuary clause or intestacy.
Anti-Lapse Statutes
The court will apply the anti-lapse statute if the beneficiary is kindred (blood relative) of the
testator and leaves lineal descendent(s).
Today, the anti-lapse statute will apply if Beth is kindred of Tom and leaves lineal descendents.
Tom’s sister, Beth, is kindred since she is a blood relative of Tom. She is survived by a child,
Norm, and two grandchildren (Deb and Eve) from Beth's predeceased child.

The anti-lapse statute will pass the Elm Street residence as follows:
Per probate code §240, the residence will be divided at the first generation where there is a living
descendent. Each living person and any deceased person who leaves living descendents will have
an interest in the residence. Norm will receive a one-half ownership in the residence. Beth's other
child, the parent of Deb and Eve, has predeceased Beth. Therefore, Deb and Eve are entitled to
step-up and claim their deceased parent's one-half interest in the residence.
Norm will have a one-half interest in the residence. Deb and Eve will share the one-half interest
that would have passed to their deceased parent. One-half will go to Norm. One-fourth will go to
Deb, and one-fourth will go to Eve.
Classification Of The Gift
A specific gift is a transfer of specifically identifiable property.
Tom's will stated: "My OmegaCorp stock to my brother, Carl". By use of the word "my" Tom
was referring to specifically identified OmegaCorp stock, namely, the OmegaCorp stock he
presently owned.
The OmegaCorp stock provision is classified as a specific gift. The classification of "general" or
"demonstrative" does not apply to these facts due to the use of the word "my".
Ademption By Extinction
When a testator disposes of the specifically identified property, which is subject to a specific
provision in the will, that gift is adeemed by extinction whatever may have been the testator's
motive or intent.
After executing a will containing a specific provision of OmegCorp stock to Carl, Tom sold all of
the OmegaCorp stock, and used the proceeds to purchase AlphaCorp stock. The facts do not
contain any reference to Tom’s motive or intent for this action. Tom knew he had disposed of the
OmegaCorp stock, but he did not change the specific provision in favor of Carl. This is not a mere
change in form, but represents a substantive change in corporate ownership.
The specific provision of OmegaCorp stock to Carl is adeemed by extinction. Carl receives
nothing.
Residue
Property of the estate that is not otherwise disposed of in the will is part of the residue, which
passes to the residuary beneficiary.
The will does not provide for the disposition of the after acquired AlphaCorp stock. It is deemed
to be "residue," which passes by the residuary clause.

State University will receive the AlphaCorp stock.
Distribution
A) The $100,000 passes to Al based on Tom’s intent to revive the gift after validly revoking
the codicil by physical act with the simultaneous intent to revoke.
B) Under the anti-lapse statute, Norm will receive a one-half interest in the Elm residence.
Deb and Eve will split the other one-half interest as descendents of Beth's predeceased
child.
C) The OmegaCorp stock is adeemed by extinction so Carl does not receive anything.
D) The AlphaCorp stock is not disposed of by the will so it passes to State University under
the residuary clause.

WILLS
QUESTION #4
In 2001 Tom, a resident of California, executed a valid typewritten and witnessed will. At that
time, Tom was married to Wynn. Tom also had two nephews, Norm, and Matt, who were the
children of his deceased sister, Sue.
Tom's will made the following dispositions:
Article 1: I leave $10,000 to my friend Frank.

Article 2: I leave my shares in Beta Corp stock to my friend Frank.
Article 3: I leave $80,000 to my sister Sue's issue.
Article 4: I leave the residue of my estate to my wife.
The $10,000 figure in Article 1 was crossed out and $12,000 was handwritten in Tom's hand
above the $10,000 figure. Next to the $12,000 Tom had handwritten, "Okay.
2/15/02."
In 2003 Tom and Wynn had a child, Cole.
In 2004, Matt died in a car accident. Matt was survived by his children, Lynn and Kim.
Tom died in 2005. Tom was survived by Wynn, Cole, Norm, Frank, and his grandnieces, Lynn
and Kim. At the time of his death, Tom owned, as separate property, $500,000 in cash. He also
had 100 shares of Beta Corp stock, titled in Tom's name, which he had purchased with his
earnings while married to Wynn. The Beta stock was valued at $1.00 per share at the time of
Tom's death.
What rights, if any, do Wynn, Cole, Norm, Frank, and his grandnieces Lynn and Kim have in
Tom's estate? Discuss.

WILLS
SUGGESTED MODEL ANSWER QUESTION #4
RIGHTS OF WYNN, COLE, NORM, FRANK, LYNN AND KIM IN TOM’S ESTATE
Validity Of Tom’s 2001 Will
The facts indicate Tom executed a valid typewritten and witnessed will in 2001. Tom's will
contained the following dispositions: “$10,000 to my friend Frank, my shares in Beta Corp stock
to my friend Frank, $80,000 to my sister Sue's issue and residue of my estate to my wife.”
Thus, a valid formal will was created as it satisfied all requisite legal formalities.
DISTRIBUTION OF TOM’S 2001 WILL
1. COLE’S RIGHTS IN TOM'S ESTATE
Pretermitted (Omitted) Child
If a child is born after the parent executes a will and the will omits any mention of the child, the
child will take their intestate share of the estate. Exception: (a) the will expressly and
intentionally omitted the child and that intention appears from the will (b) there was a transfer to
the child, outside of the will, that was intended to be in lieu of a gift in the will (c) the decedent
had one or more children and gave substantially all of the estate to the other parent of the omitted
child.
Tom’s will was executed in 2001. Wynn, Tom’s wife, gave birth to their child, Cole, in 2003. The
2001 will did not mention Cole.
Cole is a pretermitted child who was born after the making of his will in 2001 and the will makes
no provision for Cole.
The terms of Tom’s will do not expressly and intentionally omit Cole. Further, Tom never
transferred to Cole any gift or devise that was intended to be in lieu of a gift in his will. Neither
exceptions (a) or (b) apply in this case.
Further, Wynn, Cole’s parent, did not receive substantially all of Tom’s estate ( “Article 4: I leave
the residue of my estate to my wife”). Therefore, exception (c) does not apply. As a pretermitted
child Cole is entitled to whatever share of the deceased’s estate that they would have received if
the testator had died intestate.
Tom’s estate consisted of $500,000 cash (separate property) and 100 shares of Beta Corp Stock
valued at $1.00 per share. The Beta Corp stock is community property as discussed infra.
Cole and his mother, Wynn have survived Tom. With regards to the $500,000 separate property
cash, Cole is entitled to one half ($250,000). When there is a surviving spouse and one child, the

separate property in the estate is divided with an equal share to each party.
Keep in mind that Tom had a valid will. We are simply determining what Cole would have
received if Tom had died intestate. Cole would have no intestate interest in the community
property of Tom and Wynn.
Cole will receive $250,000 from the $500,000 separate property as his pretermitted share of
Tom’s estate.
2. FRANK’S RIGHTS IN TOM'S ESTATE
Revocation By Physical Act
When the will was last known to be in the possession of the testator, and testator remains
competent until death, any physical changes in the terms of the will are presumed to have been
made by the testator. The physical act of crossing out a monetary gift amount, with the
simultaneous intent to revoke that amount is a valid revocation by physical act.
From the facts, we can assume the will was in Tom’s possession until his death. At Tom’s death,
the $10,000 cash gift to Frank had been crossed out. Without any contrary facts, it will be
deemed that Tom crossed out the $10,000 with the simultaneous intent to revoke that gift to
Frank.
The $10,000 gift to Frank was validly revoked by Tom.
Legal Effect Of Increase
An increase by interlineation is not permitted under the Probate Code unless it meets the
requisite formalities for a valid codicil. This attempted increase must be witnessed the same as a
formal will.
There are no facts suggesting that anyone witnessed Tom’s act of crossing out the $10,000 figure
and writing above it the $12,000 figure. If not, the increase would fail for lack of proper
witnesses, a requisite formality necessary for it to be considered a valid formal codicil.
Frank will counter that since the $10,000 bequest was revoked, the $12,000 figure written by
Tom clearly indicates Tom’s intent that he receive the $12,000.
However, due to the lack of formalities, Tom’s act of writing in the $12,000 will be invalid.
Holographic Codicil
A handwritten codicil may be valid if all material portions are in the testator's handwriting and
signed by the testator, anywhere on the document. A date is not required for validity but may be
relevant if another instrument is also offered for probate.

Tom crossed out the original bequest to Frank and above it wrote the $12,000 figure. The
amount of the bequest would be considered a material portion of the codicil and was in the
handwriting of the testator.
Nonetheless, only the “$12,000” and "Okay. 2/15/02” are in his handwriting. The remaining
portion of the provision to Frank is not in Tom’s handwriting and cannot be considered by the
court.
In order for Tom’s handwritten addition to have any meaning for the court, the court would have
to refer to the typewritten words indicating who was to receive the $12,000.
Such reference to typewritten material is prohibited since the holographic codicil must be
entirely in Tom’s handwriting.
Tom’s attempt to increase the gift to Frank fails as a holographic codicil to Tom’s will.
Doctrine Of Dependent Relative Revocation
A revoked bequest will be reinstated in the will where the testator revoked the bequest on the
mistaken belief that another disposition of his property would be valid and, but for the mistake,
he would not have revoked the will provision.
As noted earlier, Tom validly revoked the original $10,000 to Frank. His subsequent attempt to
execute a valid holographic codicil by writing “$12,000 Okay 2/15/02” was invalid since the
handwritten portion has no meaning without reference to the typewritten words “to my friend
Frank.”
The Doctrine of Dependent Relative Revocation may be applied by the court to save the original
$10,000 gift to Frank. Rationale: Tom clearly intended for Frank to receive the $12,000 instead
of $10,000. He believed that by adding the written words he would accomplish that intent.
However, but for Tom’s mistaken belief that the written words would give Frank $12,000, he
would not have revoked the $10,000 gift. This attempt cannot be sanctioned by the court.
Therefore, it appears that the court will allow the $10,000 figure in Tom's will to be reinstated in
order to effectuate Tom's intent to provide for Frank in his will.
Classification Of The 100 Shares Of Beta Corp Stock
Community Property
Earnings during marriage are classified as community property. Under the “exchange rule” any
property purchased with those earnings remains the community property of the marriage. When a
spouse uses their earnings during marriage to purchase stock in their own name, absent an
express written transmutation of the non-purchasing spouse or an intent to make a gift to the
acquiring spouse, the stock remains the community property of the marriage.

The facts state that Tom purchased the Beta Corp stock with his earnings during his marriage to
Wynn. Earnings of a spouse during marriage are based on the spouse’s time, energy and skill, etc
which are deemed to be community property. Therefore, the earnings are community property.
Tom used community property to purchase Beta Corp stock (exchange rule) in his name only.
Title is not the sole determining factor in classifying marital property. There is no evidence that
Wynn executed any type of express written instrument that would have transmuted the
community property earnings to Tom’s separate property. In fact, there is no evidence that Wynn
even knew about Tom’s stock purchases during the marriage.
The 100 shares of Beta stock in Tom’s estate are community property which is subject to
Wynn’s equal, undivided one half interest.
Third Party Transfer Of Community Property
If the acquiring spouse dies before the non-acquiring spouse then the acquiring spouse may will
away their one half interest in the community property.
Tom’s use of his earnings to purchase the Beta Corp stock will result in the stock being classified
as community property despite Tom’s taking title in his name only. Tom may will away his one
half interest in the Beta Corp stock.
Frank will receive 50 shares of the Beta Corp stock. Wynn owns a one half interest or 50 shares
of the Beta Corp stock.
3. NORM, MATT, LYNN, KIM’S RIGHTS IN TOM'S ESTATE
A gift to the “issue” of a deceased sibling of the decedent will be divided into shares at the level
of the first living claimant (s).
Tom’s sister, Sue, predeceased Tom. Tom’s will gave $80,000 to Sue’s issue. “Issue” refers to
descendants, not just children. Sue had two children, Norm and Matt, Tom’s nephews. However,
Matt also predeceased Tom when he died in a car accident in 2004. Tom did not change his will
in light of Matt’s death.
Lapse Gift
A lapsed gift is one that was valid when the will was executed, but which fails due to the
subsequent death of the beneficiary during the testator's lifetime.
Tom’s will gave $80,000 to Sue’s issue which was valid at the time the will was executed.
However, Matt’s subsequent death in 2004 in a car accident, prior to the 2005 death of Tom the
testator, would cause Matt's gift to fail. Norm will receive $40,000 and Matt would have
received the other $40,000 but for the fact that he also predeceased Tom.
At common law, the $40,000 gift to Matt would lapse and pass by the residuary clause or

intestacy.
Anti-Lapse Statutes
Anti-lapse statutes will prevent testamentary gifts from lapsing if the predeceased beneficiary
was a kindred to the testator and dies with lineal descendants capable of taking the gift by
substitution.
Today, the anti-lapse statute will apply as Matt is kindred of Tom (nephew) and left lineal
descendants (Lynn and Kim). Tom’s sister, Sue, is kindred since she is a blood relative of Tom.
Tom’s sister, Sue, predeceased Tom. Tom’s will gave $80,000 to Sue’s issue. “Issue” refers to
descendants, not just children. Sue had two children, Norm and Matt.
Matt was survived by two children, Lynn and Kim (Sue’s grandchildren). When Tom died, Sue’s
issue consisted of her son, Norm, and two grandchildren Lynn and Kim.
Tom’s gift of $80,000 to Sue’s issue will be divided into shares beginning with the level of the
first living claimant which is Norm. Any claimant at the same degree of relationship who leave
descendants will also receive a share.
Since Matt left living descendants, Lynn and Kim, they will “step up” and receive Matt’s share
($40,000). They will each receive $20,000.
Norm receives $40,000. Matt’s $40,000 share will be divided equally between his surviving
children, Lynn and Kim. They will each receive $20,000.
Class Gift
A “class” is an indeterminate group of people which becomes “determined” once the testator dies
and there is at least one surviving member of the class. The anti-lapse statute applies to class
gifts.
Sue predeceased Tom leaving two children, Norman and Matt. Matt also predeceased Tom by
dying in a traffic accident. Matt was survived by two children, Lynn and Kim. When Tom died
the class was closed. The class consists of Norman, Lynn and Kim.
At common law, if a person predeceased the testator their gift lapsed as discussed above.
However, under modern day anti-lapse statutes the gift may be saved for the descendants of the
pre-deceased class member.
Matt’s two children will ask the court to apply the anti-lapse statute to award Matt’s share of the
class gift to them. The court will apply the anti-lapse statute to allow Lynn and Kim to share, by
representation, in the $40,000. Each will receive $20,000.

4. WYNN’S RIGHTS IN TOM'S ESTATE
The residue of an estate consists of any property owned by the decedent that has not been validly
conveyed under the decedent’s testamentary documents.
The residue of Tom’s estate consists of (1) the remainder of the $500,000 cash after Cole
receives his $250,000 interest, Frank receives his $10,000 gift and the $80,000 is distributed to
Sue’s issue; (2) Frank receives 50 shares of Beta Corp stock.
Wynn owns one half of the Beta Corp stock as her community property interest as discussed
supra. Wynn will assert her one half interest in the Beta Corp stock outside of the terms of the
will.
The residue consists of the remaining $160,000 cash from the original $500,000 in the estate.
Recapitulation
Cole
Receives $250,000- his one half interest in Tom’s separate property as a pretermitted child.
Frank
Receives $10,000 and 50 shares of Beta Corp stock.
Norm
Receives $40,000 – his part of the $80,000 given to Sue’s issue.
Lynn And Kim
Each receives $20,000 by right of representation as the children of Sue’s deceased child, Matt.
Wynn
Owns 50 shares of the community property Beta Corp stock outside of the will and receives
$160,000 remainder of the $500,000 separate property.

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Wills

CONQUER THE BAR

LONG/SHORT TERM BAR REVIEW

I. IS THERE A VALID WILL?

C. Legal Formalities: (Ritual/Evidentiary/Protective)

D. Contracts To Make A Will (Contract/Remedies)

II. WHAT DOES WILL CONSIST OF?

III. IS VALIDITY OF WILL AFFECTED BY SUBSEQUENT EVENTS?

Fleming’s Fundamentals Of Law (© 2011) Wills Page 1

Fleming’s Fundamentals Of Law (© 2011) Wills Page 2

1. Infancy: Must be 18 years old to make a will

Fleming’s Fundamentals Of Law (© 2011) Wills Page 3

d. Innocent misrepresentation by a third party is not actionable

b. Kindness and affection will not, by themselves, be regarded as undue

Fleming’s Fundamentals Of Law (© 2011) Wills Page 4

CAVEAT: Beware of interested witness (infra)

d. Burden of proof is on the challenger to show undue influence

Fleming’s Fundamentals Of Law (© 2011) Wills Page 5

2) Contest means any action identified in a “no contest” as a violation of the

3) Includes both direct and indirect contests

b) Indirect contest - A pleading in any court that indirectly challenges the

5) As a matter of public policy, the following do not constitute a violation of a no

Fleming’s Fundamentals Of Law (© 2011) Wills Page 6

6) Number 4) above does not apply to a codicil or amendment to an

Fleming’s Fundamentals Of Law (© 2011) Wills Page 7

b. Ca. invalidates a no-contest clause in the following circumstances. Any person

7) Post death subscription by attorney/witness was valid where no

Fleming’s Fundamentals Of Law (© 2011) Wills Page 8

7. Ambiguity: Particular words/descriptions subject to multiple interpretations

C. Legal Formalities: (rationale: Ritual/Evidentiary/Protective Nature of the Statute of Wills)

Fleming’s Fundamentals Of Law (© 2011) Wills Page 9

2) Provisions located under signature, if added later, invalid (lack of due

d. Attestation by competent witnesses:

b) The signing by the testator or the testator's acknowledgment of the

Fleming’s Fundamentals Of Law (© 2011) Wills Page 10

2) Must be signed on the will (anywhere will suffice)

3) Date need not be accurate unless its deemed material

Fleming’s Fundamentals Of Law (© 2011) Wills Page 11

Fleming’s Fundamentals Of Law (© 2011) Wills Page 12

c. If a contract to make a will is breached prior to first death, no obligation exists on

2. Revocability: Revocable at any time unless made irrevocable by contract

Fleming’s Fundamentals Of Law (© 2011) Wills Page 13

A. Integration: Will written on more than one piece of paper

B. Codicil: A testamentary instrument executed subsequent to the execution of a will ordinarily

1. Admissible to probate by itself. If will fails codicil may become will.

C. Incorporation By Reference: Document is incorporated into the will by reference so that it is

b. Identifiable: Document is in fact the document described

2. Incorporation in holographs: Most states allow holographs to incorporate by reference

Fleming’s Fundamentals Of Law (© 2011) Wills Page 14

III. IS VALIDITY OF WILL AFFECTED BY SUBSEQUENT EVENTS?

1. Subsequent Testamentary Instrument

b. Implied revocation: A will may be revoked in whole or in part by implication from

2) Partial Inconsistency (superseded): The latter instrument prevails over the

Fleming’s Fundamentals Of Law (© 2011) Wills Page 15

Fleming’s Fundamentals Of Law (© 2011) Wills Page 16

k. Increase by physical act not permitted: A cancellation or destruction cannot be used

l. Lost or destroyed wills: A lost/destroyed will can be admitted to probate if it is

b. Children: Means of protecting children's share who have been unintentionally

Fleming’s Fundamentals Of Law (© 2011) Wills Page 17

2) When a domestic partnership is terminated it revokes any will the same as it

Fleming’s Fundamentals Of Law (© 2011) Wills Page 18

d. DRR will apply to a revocation by subsequent instrument (with or without an

Fleming’s Fundamentals Of Law (© 2011) Wills Page 19