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California Bar Exam Lecture Notes - Wills

California Bar Exam Lecture Notes - Wills

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Published by Lal Legal
Bar exam lecture notes and outline for California section on Wills
Bar exam lecture notes and outline for California section on Wills

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Published by: Lal Legal on Jun 11, 2014
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01/29/2015

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WILLS I. WILLS
California Wills Differences:
 (1) (2) (3)
A. Validity
 1. In order for a testator to have proper testamentary capacity: a. Age requirements: b. Sound mind: (1) the person does not have sufficient mental capacity to be able to: (a) (b) (c) remember and understand his relations to living descendants, spouse, and parents, and to others whose interests are affected by the will. (2) Insane Delusion: the person suffers from a mental disorder with symptoms including delusions or hallucinations resulting in the person devising his property in a way he would not otherwise do. A testator is presumed to be of sound mind. But this can be challenged through a will contest by any person who has an interest in the distribution of the estate. If such a person brings in evidence of lack of capacity on behalf of the testator, then the proponent of the will must show that the testator possessed testamentary capacity by the prepon-derance of the evidence.
EXAMPLE:
 Testator leaves a will that says “I leave half of my estate to my brother and the other half to Batman to be used to redecorate the Batcave.” If the testator is under an insane delusion that Batman is a real person, then that insane delusion is affecting the disposition of the will. The will is still valid but the effected disposition will be cut out. The brother will still get half of the estate. If there’s no residuary beneficiary, then
 
EXAM TIP
 
the property will fall to intestacy.
EXAMPLE:
 Testator makes out a will leaving her entire estate to her sister stating that she is writing this will on recyclable paper because Batman told her so. Even if testator is suffering from an insane delusion, the insane delusion has no effect on the disposition under the will, and is thus ignored. The insane delusion does not prevent the testator from being of sound mind. 2. Intent a.
EXAMPLE:
 If a testator sends a letter to his sister, and says he intends to make up a will next week and details how he wishes to have his property distributed. If testator dies before making that will, can the letter be admitted into probate? Even though that document might qualify as a holographic will under California law, at the time the testator wrote the letter, he did not intend that letter to be a will. The letter cannot be deemed to be the testator’s will because the testator lacked testamentary intent. b. Three areas that prevent testamentary intent: (1) Undue influence: (a) (b) Presence of undue influence is solely a question of fact, based on: 1) 2) 3) (2) Fraud (a) Two types: 1) a) b)
EXAMPLE:
 Radar O’Reilly presents a stack of papers for Colonel Henry Blake to sign, stating they are all important documents. Radar inserted a piece of paper that states “I, Henry Blake, leave all my property to Radar O’Reilly.” Radar used fraud to have Colonel Blake sign the document. Will is invalid. 2)
 
 
a) b)
EXAMPLE:
 A child fraudulently claims to be testator’s illegitimate son. As a result, the testator leaves half of the estate to the child. Would the testator have left half of the estate to the child, if the testator knew the true facts? If no, then invalidate the gift. If yes, then it does not constitute fraud sufficient to strike that provision of the will. (3) Mistake (a) Two types: 1) a) b) 2) a) b) c) In some instances, CA courts will permit extrinsic evidence. If there is ambiguity or evidence of undue influence, fraud or duress, courts will admit extrinsic evidence to show true intent.
 
A sham will is a will made by the testator as a sham or a joke not intending that it be a valid testamentary instrument. If it can be that shown by the challenger through clear and convincing evidence that the document was not intended to be a will, but created as a sham or a joke, then the will be invalid. Testamentary intent was not present. A conditional will is when there is a condition precedent to the will taking effect. In such a situation, if the condition does not occur, then the will is invalid. However, the condition must be clearly spelled out in the document.
HYPOTHETICAL
From 2004 on, Roger repeatedly threatened his sick brother George that he would “pull the plug” on him if he didn’t leave him money in his will. George died in 2009 leaving Roger a large bequest. George’s son Barry moved to have the will set aside for undue influence, but notes found in George’s effects showed that George had always intended to leave most of his estate to Roger, but simply had never wanted to tell Roger that. Can Barry succeed?
 
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