I)

Intent A) Capacity requires the testator is 1) 18 yoa, 2) understand the extent of the property, 3) the bounty (spouse/issue), & 4) the nature of their act. 1) Consequence If there is no capacity, the entire will is invalid, and the property will pass by intestate succession. a) Exception if there is a valid prior will that was revoked by a second will, the first instrument will be probated because the testator did not have capacity to make the second will. B) Insanity requires the testator had a 1) false belief that was 2) the product of a sick mind, there is 3) no evidence to support the belief, and the 4) delusion affected the testators will. (at time of execution) 1) Consequence only that part of the will that was affected by the delusion is invalid, and it will pass with the residue and remainder. C) Fraud requires an intentional representation of material fact, known to be false by the wrongdoer which the testator relies upon. 1) Fraud in the execution requires a misrepresentation as to the nature or contents of an instrument. a) Consequence the entire will is invalid and the property passes by intestate succession unless there is a prior will that was validly executed. 2) Fraud in the inducement requires misrepresentation of facts that influence the testators motivation. a) Consequence only that part of the will affected by the fraud is invalid, and the property passes by the residuary, and if none, by intestate succession or constructive trust. D) Undue influence requires coercion that deprives testator of his free will. 1) Prima facie case requires susceptibility, opportunity, active participation, and an unnatural result. a) Consequence only that part of the will affected by the undue influence is invalid, and the property passes by residuary, and if none, by intestate succession or constructive trust. 2) Presumption requires a confidential relationship, active participation, and an unnatural result. a) Consequence only that part of the will affected by the undue influence is invalid, and the property passes by residuary, and if none, by intestate succession or constructive trust. 3) Statutory requires that a donative transfer is invalid if it passes to a 1) person who drafted the instrument, 2) a person related to the drafter of the instrument, 3) a fiduciary of the transferor who transcribes the instrument, or 4) a care custodian of a dependant adult. a) Exception the draftor is related to the transferor, independent counsel reviews the instrument, or the court determines there is no wrongdoing. b) Consequence The transferee does not take in excess of their intestate share, and the remaining portion passes with the residuary. (as if transferee had predeceased T)

II) Mistake A) Mistake in content requires the wrong beneficiary is named, or the wrong gift is made. (Court will not re-write will) 1) If the mistake is an omission, words are left out and the court will not add them. 2) If the mistake is an addition, words are added and the court will remove them. B) Mistake in execution requires the testator signs the wrong document and the court will not probate it. 1) Exception if it is a mutual will, the court may reform the will. C) Mistake in inducement requires a particular gift is made, or not made, on the basis of the testators erroneous belief, and the wrongdoer will not take. 1) Exception when both the mistake and what T would have done but for the mistake appears on the face of the will, the court will probate it. D) Mistake in description requires that no one or nothing, or 2 or more persons or things fit the description, and the court will allow parol evidence to show what the testator meant by the words used. E) Dependant Relative Revocation requires the testator revokes (by physical act or subsequent will) a will in the mistaken belief that a subsequent instrument effectuates their intent, and but for this mistake, would not have revoked the first will, therefore the first will is deemed never revoked. 1) Consequence the first will is deemed valid because the second instrument is invalid, and the court will probate the first will. F) Pretermission requires a child is born or adopted after all testamentary instruments are executed and not provide for in any of them, and they will take an intestate share. III) Components of the Will A) Integration requires intent for all papers to be part of the will, and the papers must have been physically present at the time

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of execution. 1) physical attached, or 2) Logically connected B) Incorporation by reference requires the document is in existence at the time of the will, the will clearly describes the document, and it is proven to be the document described in the will. C) Facts of independent significance require that the identity of a gift or beneficiary may be given meaning by significant independent facts from the will. (allows Parol Evid that is trust worthy) D) Writing disposing of limited tangible personal property (section 6132) requires the writing must be referred to in the will, dated and signed by the testator, the writing must describe the times and recipients with reasonable certainty, the writing may be executed before or after the will, and the writing directs the disposition of tangible personal property at no more than $5,000 per item, and not more than $25,000 in the aggregate. If not, gift lapses. 1) Effective for decedents dying on or after January 1, 2007. E) Pour-over will requires that a will, which gives estate assets to an inter vivos trust, is valid provided that the trust is identified in the will, and its terms are set forth in a written instrument executed before or currently with the execution of the will. 1) If the will does not adequately provide the terms, it can be admitted by incorporation by reference, independent significance, or uniform testamentary addition to trusts act. IV) Formalities of Execution for Attested Wills A) Attested will requires a will must be in 1) writing, 2) signed by the testator in the, 3) joint presence of two witnesses who sign the will 4) during the testators lifetime, and they 5) understand that the instrument is the testators will. 1) Clear and convincing standard requires for testators dying on or after January 1, 2009, the will can still be admitted into probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator singed the will, they intended the will to constitute their will. (CA = harmless error rule) B) Interested witnesses require a witness who is also a beneficiary under the will, and a rebuttable presumption arises that the gift is based upon a wrongdoing. 1) If the witness rebuts the presumption, the gift passes. 2) If the witness does not rebut the presumption, the witness can take no more than what their intestacy share would be. C) Conditional will requires a wills validity is subject to its own terms. V) Formalities of Execution for Holographic Wills A) Holographic will requires the 1) signature and 2) material provisions are in the testators handwriting. 1) The will does not need to include intent or a date. 2) If more than one Holographic will with no dates inconsistent will, will not be probated. VI) Choice of Law A) A will created in another jurisdiction will be admitted into probate in California if, 1) the will complies with Californias formalities, 2) or the will complies with the formalities of the place where it was executed, 3) or the will complies with the formalities of execution of the place where the testator is domiciled at the time of execution. VII)Codicils A) Codicil requires a testamentary instrument executed in compliance with the California probate code, which modifies, amends, or revokes a will. B) Republication requires a codicil causes the will to speak from the date that the codicil is executed on. C) If the testator executes a will and then a codicil, and then revokes the codicil, only the codicil is revoked. D) IF a pretermitted Child (born) or Spouse (new marriage) was after the will was executed, they would be pretermitted, However, if a codicil is executed After the child / spouse, then the will is republished and they would not be pretermitted! VIII) Revocation by Physical Act the act done by the testator or someone in his presence and under his direction. B) Cancellation requires writing between the lines or inter lineation 1) Cancellation to increase a gift is prohibited. C) Duplicate wills require that revocation of a duplicate will also revoke the other duplicate. D) Mutilated wills require that if a will is found in a mutilated form at the testators death, and when it was last seen it was in the testators possession, there is a rebuttable presumption that T mutilated the will with the intent to revoke the will. IX) Revocation by Instrument A) Express revocation requires will 2 expressly revoke will 1. B) Implied revocation requires will 2 revokes will 1 by implication if will 2 completely disposes of Ts estate. C) Revival requires sufficient intent on the part of T to revive will 1. Oral statement can be ok, if sufficient intent A) Revocation by physical act requires the will must be burned, torn, cancelled, destroyed or obliterated, intent to revoke, and

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X) Revocation By Operation of law A) Omitted child requires a child born or adopted after all testamentary instruments are executed and not provide for, and the child receives a share of the estate equal in value to what they would have taken if provided for. Intestate Share (see below 1) Other gifts will have to be abated or reduced. 2) Exceptions If any one exists: Child does not take! a) c) The omission was intentional and appears on face of instrument. The decedent provided for the omitted child outside the instrument, and intended this transfer to provide for the child in lieu of the other instrument. Re: Life insurance policy, Annuity Trust B) Omitted spouse requires a spouse who marries the decedent after all testamentary instruments were created, and is not provided for receives a share equal in value to what they would have received had there been no testamentary instrument. Statutory Share = (H CP) + (W CP) = 100%CP, Same for QCP, SP= up to of H SP max 1) Exceptions a) c) The omission was intentional and on the face of instrument. The spouse signed a waiver. Prenuptial Writing / Signed by (w) Spouse, Full disclosure, Ind. Attorney b) The decedent provided for the spouse outside the testamentary instrument. C) Omitted domestic partner requires a domestic partner who is not provide for at the time testamentary instruments were created receives a share equal in value to what they would have received had there been no testamentary instrument. D) Final Dissolution of Marriage or Domestic Partnership requires the revocation of the devise upon a final dissolution. 1) Exceptions the devise will be reinstated if they remarry, or the will expressly provides otherwise. XI) Revocation by Change in Property Holdings A) Specific devise requires a gift of a particular item, there is something unique about the item, and intent to make the gift. B) General devise requires a gift, which is payable out of the assets of the estate, and there is nothing unique about the gift. C) Demonstrative devise requires a hybrid between specific and general devises. D) Residuary devise requires all other property not expressly disposed of in the will. E) Ademption by extinction requires intent to give a specific gift, which fails because the testator did not own the property at their death. 1) Exceptions a) c) Securities change form due to the action of the corporation. From ABC stock to DEF Eminent domain or casualty award, or installment sale of property. b) Conservator sells off the assets, and the will beneficiary takes the proceeds. Not T selling, out of Ts control F) Ademption by satisfaction requires the testator dies with a will, and gives the beneficiary an inter vivos down payment on a devise. 1) Established by the will making a provision, the testator declares in a contemporaneous writing, beneficiary acknowledges in a writing, or the property given is the same as a specific gift. G) Advancement requires an inter vivos down payment by an intestate, who dies without a will, to an heir apparent. XII)Contracts to not Revoke or Make a Will A) There are five elements required for a valid contract to not revoke a will 1) The will or other instrument states the material provisions of the will. 2) There is express reference in the will or other instrument to a contract. 3) There is a writing signed by the decedent evidencing a contract. 4) There is clear and convincing evidence of an agreement between decedent and promisee that is enforceable in equity. - Estoppel 5) There is clear and convincing evidence of an agreement between decedent and a 3rd person for the benefit of the claimant that is enforceable in equity. B) The cause of action accrues when the decedent dies. C) Joint wills require the will of two or more people on one document. D) Mutual will requires the separate wills of two or more people, which are reciprocal. XIII) Restrictions on Testamentary Dispositions A) Community property is property other than separate property, acquired by either spouse during marriage. B) Separate property is property owned by either spouse before marriage, property acquired during marriage by gift, will or inheritance, or property acquired during marriage with the expenditure of separate funds. C) Quasi community property is property acquired while the couple was domiciled in a non-CP state, which would have been classified as CP had it been acquired under the same circumstances in California. b) The decedent transferred substantially all of the estate to the parent of the omitted child.

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D) Testator can only dispose of only their of their community or quasi-community property. E) Widows election requires the surviving spouse may accept either the gift or renounce the gift and seek their rights in the community and quasi-community property. F) When a person kills the spouse, they or their issue do not take under the will. Deemed predeceased T and no anit-lapse! XIV) Intestate Succession issue, they take all the separate property. If one child, issue of child or parents of T survives decedent, the child takes the separate property and the surviving spouse takes the separate property. If 2 or more children survive the decedent, they take 2/3 and the surviving spouse takes 1/3 the separate property. B) Intestate scheme requires issue, parents, issue of parents, grandparents, issue of grandparents. C) Per capita requires distribution at the first level someone is living and gives shares to all living people at that generation, and to deceased members of that generation who leave issue and who take by right of representation. 1) E.g. A, B and C are the first level of someone living. C is dead, but has two children, D and E. A, B, and C all take 1/3, but Cs 1/3 share passes to D and E at 1/6 each. D) Per Stirpes requires distribution at the first level (period), even if everyone is dead, so long as they left issue. The issue then step into the shoes of their predeceased ancestor. By Right of Representation E) Adopted child requires an adopted child always is treated as a natural child of the adopting parents. F) Step or Foster Children requires that T held child out to world as child of T (adoption by estoppel) or 1) relationship began during childs minority, 2) continued through the parties lifetime, 3) but for some legal barrier T would have adopted Child (legal parent would not consent to adoption) XV)Distributions of the Estate: Who Takes? A) Posthumous child requires a child conceived during the lifetime of the deceased, but born after their death, and they take under the will. B) Lapse requires the beneficiary must survive the testator, or the gift fails. C) Anti-lapse requires if the devisee who is dead was kindred of testator, or kindred of the surviving, deceased or former spouse, and the kindred leaves issue, the issue will take the gift. step into the shoes Take per Capita D) Simultaneous death requires one spouse must survive the other, by clear and convincing evidence, in order to take. E) 120-hour rule requires that any heir must survive the deceased by 120 hours. XVI) Distribution of the Estate: What Does the Beneficiary Take? A) After acquired property requires property acquired after the will was executed, and passes by the will. B) Increase during testators lifetime requires stock dividends or splits paid during Ts lifetime go to the beneficiary if T owns the stock at Ts death. C) Increase after testators death requires all increases go to the beneficiary if the devise was specific, and general devisees do not receive the increase. D) Abatement requires gifts are reduced E) Order of abatement requires that when it is necessary to pay for the share of the omitted child or spouse, 1st all property not passing by will or trust, 2nd from all beneficiaries gift in proportion to shares (3 Bs 90k, A & B left $ not C, abate 15K from each A & B so C gets his 30K) , No distinctions between relatives or non-relatives, also no distinction between general or specific gifts, however if it would defeat the purpose of the specific gift to X, then argue no abatement. F) Order general debts because the estate does not have enough $ requires 1) intestate property, 2) residuary gifts, 3) general gifts to non-relatives, 4) general gifts to relatives, 5) specific gifts to non-relatives, and 6) specific gifts to relatives. G) Exoneration requires the debt is extinguished. 1) If T devised a specific gift subject to an encumbrance, the executor was required to automatically pay off the debt before the property passed to B. 2) California requires B takes the specific gift subject to the encumbrance unless, Ts will states that the specific gift is to be exonerated. XVII) Will Substitutes A) Gift Causa mortis requires a gift of personal property made in contemplation of imminent death. (No real Property) 1) If the donor survives the peril, the gift is revoked by operation of law. 2) Must make Delivery to B a. b. c. Actual given to B Symbolic possibly a writing (letter) Constructive - Item too big to move, give key to location of item, or anything to show intent. A) Surviving spouse requires they take of the community and quasi-community property, and if the deceased spouse has no

Wills 2012