1. c
This is a pretty easy question. As long as you paid
attention in class, you should be able to pick out the correct answer
(it is also described in the textbook).
2. c
Again, this is just a matter of having been in class when I
discussed the terminology (during the discussion of Hodel v. Irving, as
I recall) and remembering that under intestate succession, real
property descends to heirs and personal property is distributed to next of
kin.
3. a
Question (3) is fairly difficult. Following the CPC, you
first distribute any relevant property to the surviving spouse (but
there is none). Then any remaining property (which in this case
is everything) goes--in order--to the issue (none), then to parents
(none), then to issue of parents (none), then to grandparents (none),
then to issue of grandparents (here, D, B, and C qualify). See
CPC 6402(d). So you distribute everything on this level.
If they are of equal degree, they get an equal share
(but they are not--D is 5th degree and B/C are fourth).
If of unequal degree, apply section 240 (modern per
stirpes). So, you drop to the first level where someone is alive,
which is the level of B and C, who are cousins of the decedent.
Divide into one share for each live person (i.e., B and C) and one
share for each deceased person with living issue (i.e., the parent of
D). So you divide into thirds, and B and C get a third.
Parent of D (who is deceased) provisionally gets 1/3.
The share of D's parent also drops to the first
level where someone is alive (the level of D) and you again divide into
one share for each live person and a share for each deceased person
with living issue. There is only one qualifying person--D--who
gets the entire one-third.
4. a
Courts generally will not correct a mistake, so (a) is the best
answer. DRR cannot apply (see answer b) because there was no
revoked will. She was not under an insane delusion (answer c)
because any rational person would have drawn the same conclusion that
she did based on the evidence. As to (d), there is nothing in the
question to suggest she lacked capacity to make a will, or (e) that the
newspaper exercised undue influence.
5. b
This one is fairly standard in
terms of difficulty. You can eliminate (a) pretty quickly.
(b) is in fact an element for undue influence--make a mark next to it
and continue reading. (c) also sounds good at first, but on
second thought, it is one of the elements of mental capacity, not undue
influence. (d) sounds better--it clearly has something to do with
undue influence, so maybe the best answer is (e)?? Let's read the
question again, just to make sure. Whoops! It asks for the elements of undue influence.
(d) is a way to shift the burden of proof with respect to proving undue
influence when the influence holds a confidential relationship to the
testator. It is not an element, because lots of cases of undue
influence do not involve a confidential relationship! So the
correct answer must be (b).
6. e
Under Clymer v. Mayo, divorce revokes a bequest in a will to a
divorced spouse. It does not apply to other will substitutes,
unless the will substitute and the will are part of a single
testamentary scheme. This is the same rule as in California.
The mutual fund account is clearly not part of a
single testamentary scheme with the will. You might be able to
make an argument that the life insurance is part of a testamentary
scheme, if it was purchased to pay estate taxes due under the will, but
it is a stretch and--even worse--there is no evidence in the question
to support this theory. So the bequest in the will is revoked,
and the POD in the mutual fund and the life insurance are not
revoked. Correct answer is (e).
7. a
This one is not too hard. (a) was true in the past, but as
we saw in class, it is clearly not true today, since PODs are valid on
a large number of types of documents, including contracts, stock
certificates, pension funds, etc. (b) is true, as noted in
class--to revoke a POD, you need to go to the bank, company that issued
the stock, etc.. (c) is also clearly true. Thus, (a)
is the correct answer--it is the only statement that is NOT true.
8. b
You can see pretty quickly that the issue is ademption by
extinction. Abatement relates to when the estate does not have
enough assets to pay all bequests, and that does not seem to be the
case here. Thus we can eliminate (d) and (e). We can also
note that the gift of stock is a specific legacy (not demonstrative),
so (c) is also eliminated. That leaves (a) and (b)--she gets the
money or does not. Ademption applies to specific gifts--that is
met here because Janet bequeathed specific shares of stock. A
second requirement is that it not be in the estate at the testator's
death. True here, because Janet had sold the stock.
Finally, we follow the California rule that the testator must intend to
adeem the bequest. The facts state that "Janet gets mad at
Sally and therefore sells the stock so Sally will not get it."
That's pretty clear intent to extinguish the gift, so (b) is
correct. If you studied, this one should not be too hard.
9. e
This is an "outright" gift to Tim, and there is no mention of a
condition or promise in the will, but in fact we know that Tim orally
promised to give the money to Brian. Sounds like a secret
trust. We know that the money will pass to Tim in probate court,
because the gift is unconditional, but that Brian--who knew of the
promise that Tim made-- might be entitled to a constructive
trust. We review the elements--Tim is Brenda's brother and
it looks like she placed special trust in him, so there is a
confidential relationship. Tim made an express promise.
There was a transfer (via the will) in reliance on that promise.
And Tim would be unjustly enriched if allowed to keep the money that
Brenda intended for Brian. So Brian wins, but then we remember
the defense of unclean hands--if Brenda or Brian had unclean hands, no
constructive trust. There is nothing in the facts to suggest
unclean hands, however. Brenda wanted to keep the gift secret,
but we can only guess about the reason, and speculation does not
establish a defense. A court will impose a constructive trust on
Tim and direct that he give the money to Brian, so (e) is the right
answer.
10. c
A private trust can be terminated if the settlor and all benes
consent, but the settlor has died. In that case, all benes must
consent and there must be no material purpose remaining to be
fulfilled. In addition, we learned in class that spendthrift,
discretionary, and support trusts by their very nature always have a
material purpose remaining. We need to find out what kind of
trust this is. Based on the language, it sounds like a support
trust. Discretionary trust is also possible, but less likely.
Either way, the trust is deemed to always have a material purpose
(especially if it is a support trust, which seems most likely), so it
cannot be terminated. (c) is the best choice.