QUESTIONS AND
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Last Updated 12/13/11
Q1. In regard to contracts relating to wills, is there a strict writing requirement or can a K be orally agreed upon with performance? MT
Q2. IN regards to anti lapse...how does the default rule that the remaining legatees divide deceased share proportionately work with the CA anti-lapse statute?
Q3. Ademption by extinction, are we following the identity theory or the CA (intent requirement) theory?A: we follow the CA rule.
Q4. Rule against perpetuities: is it true that all private trusts must fully vest in 21 years? How do some living trusts last through an individual's life?A: not correct. An interest in a trust must vest, if at all, within 21 years of a life in being at the time of the creation of a trust. If the life in being is young, and could live 80-90 years, plus 21, the trust can last around 100 years.
I was reviewing my notes and listening to your review lecture and it was contradicting as to change in form and a change in substance.
Q1: Is changing a bank account from a checking account to a mutual fund a change in substance or a change in form? PS
Q2: If there is a major change (i.e. a change in form) does this avoid ademption by extinction?
Q: I just have a clarification. I know that the 120 hour rule is the standard for survival in CA. However I was listening to your review and you say that the 120 hour rule applies only for intestate succession but for a will you only need clear and convincing evidence of survival unless otherwise required in the will (similar to the tylenol case). Should we mention the distinction between intestate and testate survival on the essay and what rule should be apply for the MC?
Q2. Would practical custody be sufficient to give a child away for virtual adoption or do we need legal custody?Q: according to the case we read in class and will follow, you would need legal adoption.
Q: Is it correct that the intestacy rules regarding decedent's separate property that determine when all, half, or a third go to the surviving spouse apply after the surviving spouse has received a forced share of a third? So when the rules say, for example, that all the separate property goes to the surviving spouse if decedent leaves no issue, parent, or issue of a parent, "all" is the remaining 2/3? And similarly, if it is determined that half goes to the SS b/c decedent has a parent, this is 1/2 of the remaining 2/3 (b/c SS has received a forced share of a third) or, 1/3? Thank you. MH
For the final exam, should we assume we are in CA and use the rule that there must be clear and convincing evidence that person survived by 120 hours.
Can you give some examples as to what would constitute clear and convincing evidence? - (medical testimony?) SR
Q: Also, could you explain what happens when there is no clear and convincing evidence of survival? (the property of each person is distributed as id that person had survived the other?
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Q: I had a question regarding classic per stirpes. Just to make sure, though the rule is that you prune each branch that has no living heirs, if that person is alive but has no living heirs do they still take (ie. they are not "pruned")? MH
Q: For example, decedent has 4 children:
A is alive with one living child
B is deceased w/ two living children
C is deceased w/ three living children
D is alive but has no living heirs
Would the estate then be divided first into four shares?
Q1. When there are swapped wills, there were 3 modes of dealing with them (1. strict compliance 2.probate unsigned will 3. probate the signed and reform it to make sense - modern trend). In multiple choice (MC) , which should we apply? In the essay, assuming the call of the question does not indicate jx preference) do we apply all three? KN
Q2. When there is a written change in a preprinted will in CA does the same rule apply as a typed will: a X or item cross out is read not being there, and and addition to the X with a signature only accepted if the T signs/initials?
Q3. For revocation by law- is all we have to that divorce revokes: right to inherit, power appointment and executor rights?
Q4. For the admission of extrinsic evidence in patent and latent ambiguities, do we apply the modern trend? or the CL trend to only allow extrinsic to help construe latent ambiguities?
Q5. Just to clarify, in the MC do not apply the Scrivener's Error Doctrine, but raise it as an argument in an essay?
Q6.is the plain meaning rule and the soft plain meaning rule from the Russel case the same?
Q7. What is a change in form example?
Q8. What is a change in substance example?
Q9. For a unitrust, is it always 3%?
10. What is an example of a necessity under the Spendtrifht exceptions?
Q11. If there is an english and an american approach, do we always apply american? same for modern trend v. traditional?
Q12. What is an example of a ministerial duty?
Q13. For lapse, anti-lapse and class gifts > does the fact that a class is a natural class v. an intended class change have effect on the anti lapse?
Q14. Would the following approach be ok for lapse/anti lapse problems: 1. is there a class created, what kind? 2. is there an an anti-lapse?
Q15. is "i give 200 shares of ABC" a general or specific gift and why? I thought it was a general gift bc can't tell if its already his (no "my") and it doesn't say something like "from my bank account" to make it demonstrative.
Q16. do you have more multiple choice than the 10 available online?
Q: I had a question about what the difference between a support trust/trust for the state supported/special needs trust is. I am wondering under what scenarios we would use one over the other.A: a support trust is meant to give a beneficiary whatever is needed for support, usually from both the income and the principal. The problem is that if the person ends up in a state institution, the state can reach some of the assets because it is a provider of necessities. Thus, the supplemental needs trust comes into play and is an effort to give "extra" benefits to the beneficiary in a state institution (not necessities, for which the state can demand reimbursement). Some courts have held them to violate public policy. That is essentially what you need to know.
(Q1) Regarding the Question
2(a) on the
textbook
p.298:
Suppose Testators typewritten will provides I bequeath $1000
to my
nephew
Charles, then crosses out the $1000 and substitutes
$1500.
Testator then
handwrites her initials and the date in the right-hand
margin.
Two
Witnesses see Testator modifying and signing, and they sign
it.
Could
Testator modify the will in this way in California?
Would this
considered
be a new will or modification?
A: This would be a valid codicil to the will.
(Q2)Similar question about Johnson v.
Johnson, p.317:
Testators original typewritten will was defective because
there was no
signature, date, or witnesses. Then he handwrote I will
give only
$10 to
my brother with his signature in the blank space. The
court
considered it
as a separate holographic codicil. In California, could
we argue
that
this is one single will under dispensing power? HS
Q2) We also discussed the duty to inquire in Marsman? Does this duty run to all discretionary trusts? Or is it limited to support trusts?A: as mentioned, Marsman was discretionary as to the principal. I would think that to exercise discretion properly, you always need to know about the situation of the beneficiary, and inquire if you do not have sufficient information.
Q3) I understand that a court will impose a constructive trust when there is a secret trust and there is clear and convincing evidence that there was a promise to use the trust property for a certain purpose and additional evidence that the property is not in fact being used for that purpose. Will the money or property in the constructive trust go to the purpose as is mandated by the Restatement? Or will the money go to the heirs as it did in the Oliffe case?A: Olliffe held the gift to Rev. Wells to be invalid, which is why it reverted to the heirs. In a secret trust situation, it would go to Rev. Wells, and a constructive trust can be used, if necessary, to force him to use the funds for the intended purpose.
Q4) In regards to interested witnesses, should we assume that any time a witness' spouse receives something under a Will, even if the witness is not personally left anything in the Will, that the witness is in fact "interested." In LaCroix, there was a statute that stated that "every devise given in any will to a subscribing witness, or to the husband or wife of the subscribing witness, shall be void." Should we assume that CA has a similar statute?A: You can assume that a gift to a spouse of a witness makes that witness interested.
Q1. Does lapse/anti-lapse apply to trusts? If so, does it apply only to testamentary trusts?A: We never really discussed it, but the answer in Calif seems to be yes.
Q2. I have a question on express revocation: If A hand writes a letter to her attorney: "I want you to revoke my will." and signs it in her handwriting, is this a valid revocation? What if A asks her lawyer to "destroy" her will, same result?A: As to the first option, it is a material provision and she signed it, but did she intend the letter to be a will? It seems she intended it to be instructions to her lawyer, which means it is not a will. It might be a revocation by physical act. If the lawyer does a proper physical act, it is a revocation only if done in A's presence.
Q3. For the slayer rule: when the court imposes a constructive trust, does the money go to the decedent's heirs or the slayer's heirs? Our notes in my study group are conflicting.A: If there is no substitute disposition for the gift, it would lapse into the residue. It does not go to the slayer's heirs (under Calif law, antilapse does not operate in this situation) unless the will were to specify that it should. Thus, if the will gives $100,000 to Bob, and if he does not survive me, to Bob's daughter, and Bob kills the T, the daughter gets it. If the will simply gives it "to Bob," the gift falls into the residue.
Q: I understand that in CA, the harmless error doctrine applies only to the witness requirement (allowing a court to "dispense with" that requirement as long as there is clear and convincing evidence that the testator intended the document to be his will). However, does substantial compliance also only apply to the witness requirement? I know that you gave an example where 1 witness and 1 notary sign the will (rather than 2 witnesses) and you said that should be enough for substantial compliance ("near miss"). But could any other small mistake also potentially satisfy this standard (for example, having a person sign the will in the testator's name and at the testator's direction but not in the testator's presence)? AS
Q: According to my notes on undue influence, pursuant to the CA approach, a confidential relationship and active participation in the drafting of the will by the confidant shifts the burden of proving undue influence which may be rebutted by showing there was no undue influence (majority rule) or that the testator went to a separate attorney (minority rule). However, there is also a rule which states that any donative transfer to a lawyer in a will which gives a gift to the lawyer is invalid unless they are related by blood or marriage. These seem like two different rules for the same exact scenario. Do we apply the latter rule first to see if the will is invalid and if not then go on to shift the burden of proof and see if they can rebut?A: When it's a lawyer accused of undue influence, there is indeed a lot of overlap. Yet the standards are somewhat different. The Calif statute, for instance, applies to lawyers who draft a will (the confidential relationship rule requires active participation in the drafting, and it also covers various other types of confidential relationships). So if the issues arises on an essay, I suppose you should do both analyses, and see if you reach the same result.
Q: I am looking through my notes and am a little unclear about CPC section 6402. Here is the text that I have:A: Let's say there are two next of kin, both related to the T in the 6th degree. The first is related through the great grandparents (4th parentela) and the second through the great-great grandparents (the 5th parentela). The first is preferred--the great grandparents are nearer to the decedent. This means the first person gets the entire estate (minus whatever--if anything--went to the surviving spouse).
(f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.
I am unsure what it means by "those who claim through the nearest ancestor are preferred. . ." I understand how to figure out who is the nearest ancestor, but I'm not sure what the "preferred" means. Does this mean that the nearest ancestor gets all of the SP? Or that they get a bigger share? FH
Q: Are substantial compliance, near miss, harmless error, and reforming the will (Snide) substantially the same thing? They each seem to needA: Substantial compliance and near miss are essentially the same. Harmless error is the same as dispensing power, and it requires
clear and convincing evidence that testator intended this document to be his will in order for the court to make changes to the document, correct?
Q1: Rule in question: Section 6401 (c)(2)(B)A: correct
According to this rule, the decedent's spouse will get 1/2 of the decedent's separate property if the decedent "leaves no issue but leaves a parent or
parents or their issue or the issue of either of them."
Does this mean the decedent's spouse will get 1/2 of the decedent's separate property if the decedent leaves: 1 child or 1 grand child; or No issue but leaves at least 1 parent or 1 sibling, or nephews/nieces?
Q2: Rule in question: Section 6401 (c)(3)(C)A: If they are all the decedent's descendants, yes.
According this rule, the decedent's spouse will get 1/3 of the decedent's separate property if the decedent leaves "issue of two or more deceased
children."
What if the decedent leaves 2 grandchildren, both from the same deceased child? Would this fall under 6401 (c)(2)(A): issue of one deceased child?
Q3: When dealing with permutations, my rule is:A: The rule in CPC 6402 seems to presuppose that there is only one predeceased spouse, but if there is more than one, I would assume that all the stepchildren (from all deceased spouses) would inherit an equal share. Incidentally, it is called "degree of relationship with a parentelic preference."
(a) Give to the issue of the decedent's pre-deceased spouse (step-children); and then
(b) To decedent's next of kin (closest living relative with degree of relational parentilliac preference.)
Question: What if there is more then one pre-deceased spouses? For instance, H married W1. W1 had one child from a previous marriage. W1 dies,
and H then marries W2. W2 had 2 children from a previous marriage. How would the rule apply here?
Q: Also, do the step children in (a) always inherit before the next of kin in (b)? JF
A: yes. Remember the basic principle: if you find even one taker on a particular level, you distribute everything at that level and that's the end of it.
Q: Can you explain to me the difference between 6111(a) and 6111(c)? Is testamentary intent not considered a material provision?
A: correct, testamentary intent (the testator intends the writing to be her will) is required for all wills. It is not part of the will, although there may be language in the will that evidences testamentary intent. In contrast, a material provision is part of the will.
Q: For purposes of the Exam (Multiple Choice and Essay), which version of the Plain Meaning Rule are we following?
The common law rule that says if the language on the face of the will has a plain meaning (no ambiguities), then the court will not even consider (look at) extrinsic evidence (i.e. Mahoney v. Grainger)???
- OR-
The 3 Part Test from Estate of Russell, where the California Supreme Court said that even if the language on the face of the will has a plain meaning, it would still consider (look at) extrinsic evidence to determine if the words in the will were ambiguous. If after that examination, the text of the will was ambiguous, then the court would admit the extrinsic evidence??? AC
Q: Is it possible to terminate an irrevocable trust? I understand that the general rule for termination is that it is allowed if the settlor and all beneficiaries consent (in cases where the settlor is still alive) and allowed if there are no material provisions left. Is this all premised on the trust being revocable in the first place in order to make termination possible? Or is there a substantive difference between revoking a trust vs. terminating a trust? If so, what is it? ADA: To terminate a trust is to bring it to an end and distribute the assets to the remainder benes. Only the settlor (if it's revocable) can revoke, in which case the property reverts to the settlor.
Q1. With respect to intestate
succession and
the
surviving trust, I don't understand the phrase "if the
decedent
leaves no issue but leaves a parent or the parents of their
issue or
the issue
of either of them" means. What does this phrase mean and who
is the
"their" referring to?
A: it refers to the parents of the
decedents
and their
descendants (including descendants of just one of the
decedent's
parent, like
half-brothers.
Q2. With respect to parentilic, you said that " If multiple
people in
the
same degree, use parentelic preference goes to persons who is
in the
closest
parentila to the decedent". If they are in the same degree,
aren't they
all the same parentila?
A: No, the child of a grandparent is in the third parentela,
whereas a
first
cousin is in the second (they are both 4th degree of
relationship).
Q3. With respect to formal will requirements and interested
witnesses,
the
supreme court said that they cannot be interested unless there
are two
others.
Is that correct?
A: You need to read the CPC provision
on
interested
witnesses.
Q4. With respect to a notary, my notes say that a notary is a
quasi-official
person that stamps it under oath. Is that all we need to know
for a
notary?
A: The notary checks the identification of a witness or other
signatory
and
essentially certifies that the signature belongs to that
person.
Q5. We learned that in Scheffel, there was exception to
a
spendthrift
trust for when the beneficiary is also the settler or if the
assets
were
fraudulently transferred to the trust. Does this apply to all
jurisdictoins? Is
that our rule for the class?
A: I don't recall that rule. Maybe you mean that a
settlor cannot
set up
a spendthrift trust for herself, which is indeed the rule for
class.
6Q. With respect to capital loss plus income method of
calculating
damages, you
said that most courts would probably give interest. What
interest rate
do they
give?
Q In my study group's review we found an issue I was hoping you would clarify. Can you please let me know if my understanding is accurate?
Under the rule of Clymer v. Mayo, when there is a single testamentary scheme (most likely a pour over will and trust?) a divorce would revoke dispositions to former spouses under both a trust and a will. However, in CA, this automatic revocation by law does not apply to trusts, pensions, insurance beneficiaries, or other bank accounts.
Is it fair then to say that the Single Testamentary Scheme doctrine does not apply in CA? Or might it apply in a way I am just not considering. Thank you very much.
Q: I had a question about insane delusions. The CPC section makes it seem
like an insane delusion makes someone incompetent, so does that mean
that the entire will won't be entered into probate or just that the
part that seems to be caused by the insane delusion will be stricken? KC
Q: I had a question about modern per stirpes vs. per capita at each generation. First of all, these are systems of representation, but do they apply in wills or for intestate succession (it might seem like a very elementary question but I was just confused)?
Q: Also, I have an example that I came up with and I wanted to know what result under modern per stirpes and per capita at each generation. The example is below.
D has three children (A, B and C where A and B are deceased and C is alive). A has 3 children (D, E, F and they are all alive). B has a child (G, who is deceased) and G has 2 alive children (J, K). C also has two children who are both alive (H, I). What result under per stirpes and per capita at each generation? Thanks for your time. HM
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I just had a couple of questions about adoptions:
(1) For child adoption, in the case of step-parent adoption. Under BOTH wills and intestacy, is the natural link to the bio parent cut off and replaced with the link to the one bio parent/adoptive parent? So under both wills and intestacy, the bio parent/new spouse are the natural parents of the child, meaning that the children can inherit from the bio parent/new spouse AND their old bio parent and his relatives (but this is a one way process with the old bio parent's side of the family)? I only ask because when children are initially adopted, you made the distinction between wills and intestate succession and I wanted to know if the same UPC rule applied to for step-parent adoption.
(2) In the hypothetical you gave in class about adult adoption and the oil tycoon adopting his stripper as his daughter, did they not get married? Does adult adoption for the purposes of passing along assets and avoiding will contests mean that the oil tycoon couldn't have married his stripper and then adopted her? If he had done that, would that be more like the Minary case where the husband adopted his wife in order to make her an heir? Or is the bigger takeaway from Minary the fact that the husband adopting his wife would have circumvented his mother's intentions in the will that her natural heirs inherit her estate? JKA: The tycoon did indeed get married to Anna Nicole, may she rest in peace, and who probably would prefer to be remembered as a "model." I think of Minary as dealing with the intentions of the settlor of the trust--the court decided that she wanted her estate to go to her blood relations, not to people adopted for the purpose of getting a share of her estate.
Q: For adoption rules, when you say a genetic parent can't inherit from or through the child, does this include both intestate succession and a will? What does the term inherit encompass?
Q: I have a question, Say that A transfers a property to B and creates a trust with a term that says B will manage the property until A's son will turn 30. If the A's son dies before he turns 30 the court will probably create a resulting trust to give the property back to A's estate, correct? In such case can A's son's son, who is the heir of A's son property, ask for a constructive trust? Will this not work because there is not really any unjust enrichment? Will A's son's son have any kind of interest in the trust property?A: I would think that A's son could try to apply antilapse, which can be used in CA in the case of trusts. It should work here.
Q: Also, I'm kind of confused about the spend thrift clause. I think the spend thrift clause usually say that any kind of alienation is prohibited voluntarily and involuntarily. However, does that mean distributions are not allowed as well? Or does the spend thrift apply after the distribution restricting the way the beneficiary can spend his money? Then can the beneficiary spend the money within the restriction without having the creditors going after his money?A: The trustee can and usually must make distributions. Once the money is distributed, the spendthrift clause has no effect. The bene can use it, and creditors can try to reach it.
Q: I'm kind of confused when a language to create a trust in a will is precatory vs mandatory. One of the multiple questions says that "with the request" is generally considered precatory. The question had specific directions saying "with the request that Chan deliver the home to jin if Jin graduates from college". The answer said it was still precatory because it is not a legally enforceable duty. So what language will make a request mandatory to create a trust? KK
Q1.
Assuming
the spouse/domestic partner has already taken its share of the
intestate estate and theres a remainder of $100 and the
decedent is
survived by
three children and theres a fourth child that
predeceased
decedent but fathered two children (decedents sole
grandchildren), then
does that mean the three children of decedent get $25
each and
the two
grandchildren split their parents $25-share equally?
A: After taking care of a spouse's
share, the
issue
are next in line, and if they are of unequal degree, as in
this case,
they take
according to CPC 240. The result you suggest is correct.
Q2.
Assuming
the spouse/domestic partner has already taken its share of the
intestate estate and theres a remainder of $100 and the
decedent is
survived by
four children and one of them fathered two
children
(decedents sole grandchildren), then does that mean the four
children
get $25 each and the two grandchildren get nothing?
A: Except in the case of a per capita distribution, which does
not
apply here,
if a person's ancestor gets a share, that person's issue do
not (the
idea is
that the ancestor can pass the money on to his or her
descendants. If the
father of the two children survives the decedent and takes a
share, the
father's children get nothing from the decedent's estate.
Q3.
Assuming
the spouse/domestic partner has already taken its share of the
intestate estate and theres a remainder of $100 and the
decedent is
survived by
three children and theres a fourth child
that
predeceased
decedent but fathered two children (decedents sole
grandchildren) who
themselves predeceased decedent and yet each fathered
one child
(decedents sole great-grandchildren), then does that mean the
three
children of decedent get $25 each and the two
sole
great-grandchildren split $25 equally, which was the equal
share of
decedents
predeceased child?
A: yes
Q4.
Assuming
the spouse/domestic partner has already taken its share of the
intestate estate and theres a remainder of $100 and the
decedent is
survived by
three children and theres a fourth child
that
predeceased
decedent but fathered two children (decedents sole
grandchildren) and one
of them is living but the other predeceased
decedent
but fathered
one child (decedents sole great-grandchild), then how
is the $25
share
of decedents predeceased child handled? Does decedents
sole
living
grandchild take the entire $25? Does decedents
sole
living
grandchild and sole living great-grandchild share the $25
equally?
A: the latter.
Q5. Lastly,
when
property is
distributed per intestate succession does the rule requiring
that
everything
must be distributed on the first relevant level mean that
before we
can, for
example, distribute property to decedents parents the decedent
must
have died
without any issue? Also, for example, does it mean that
before we
can
distribute property to the issue of decedents parents, the
decedent
must have
been predeceased by all of decedents issue and parents?
RM
A: correct on both counts.
1) Can you change the "one-way arrow" of equitable adoption through a will?
Q2) Is the following correct:
-If commit murder/vol. manslaughter then slayer rules apply
-If commit involuntary manslaughter, then slayer rules don't apply (can inherit)
-If INSANE and then kill, can inherit even if you have a vested interest
Q3) Is the following correct: Under the normal undue influence rule in CA, contestant needs to show undue influence factors but if confidential relationship (per se or factual and influencer had a hand in drafting the will), then burden SHIFTS and influencer must show that NO undue influence.
Q4) Do short term SOL statutes only apply to wills and do longer ones only apply to will substitutes or does it depend on the jdx?A: the short term SOL is part of the probate process, so it only applies to assets that go through probate (thus, not will substitutes).
Q5) Can you change a life insurance beneficiary through a living trust (in which assets were poured over into trust through a will) or do you still need to go to the insurance company?
6) Do the exceptions to spendthrift trusts only apply to mandatory trusts with a spendthrift provision?A: generally, that is correct.
Q7) Is BANKRUPTCY a valid exception to a spendthrift provision?A: depends on state law. See the book at p. 624.
Q8) If a state is furnishing necessities, is that an exception to a mandatory trust with a spendthrift provision?A: yes
9) Do the "change in form (minor change) versus change in substance" rules only apply to specific gifts?
Q10) For abatement, when dealing with specific/demonstrative gifts, what are we basing the pro-rata calculation on? The total amount of $ we have in relation to how much we owe?
Example: If we needed to give 30k from stamp collection to C and 2001 Ford (worth 10k) to B and we have remaining in the estate 20k in cash plus the Ford car (which we sell for 10k), does this mean that B gets 7500 and C gets 22,500? HM
Q1) In terms of lapse/antilapse, kindred extends to the 3rd
degree
only correct? So first cousins of deceased don’t count as
kindred since
they are 4th degree (according to consanguinity table)? The
practice
problems we went over seem to treat first cousins as valid
kindred for
antilapse purposes. Or do we follow CA rule where it seems that
anyone
who can prove blood relation passes.
A: "Kindred" seems to mean any blood relative, which does not
stop at
the 3rd degree.
Q2) I thought antilapse can apply if transferee is kindred of a
surviving, deceased, or former spouse of the transferor? So then
does
the antilapse requirement for kindred extend to 3rd degree of
the
spouses kindred?
A: same answer here.
Q3) T gives “my farm in Los Olivos to A,B, and C” In the lapse
handout
(3/5/09), I have down that this group is clearly not a class.
Can’t we
make an argument that this text suggests that testator meant for
them
to be a class if we cannot save via antilapse?
A: you could make the argument, but I don't see any evidence for
a
class here. The mere fact that a gift is made to A, B, and
C is
not evidence that they constitute a class.
Q4) I am having trouble understanding power of appoinment. It
seems to
operate much like a discretionary trust but without the
fiduciary duty
tied to it. Why is this something the settlor would want to
include in
his trust?
A: All you need to know about a power of appointment is that it
gives
someone else the power to decide what happens with your
possessions. Thus, a trust might give income for life to
A, and
also give A a power of appointment over the remainder. A
can
choose who gets the remainder when she dies.
Q 5) Do we need to apply the rule where some jxns seem to hold
presumption of UI when certain elements are met (confidential
relationship, etc.) and then shift the burden over to the
influencer to
prove that UI was not present?
A; Yes, if there is indeed a confidential relationship.
Q6) Is the reason that creditors can reach settlors debt via a
living
trust b/c the trust remains revocable and settlor can still
retain
title to the property? By the same token, is this why creditors
cannot
reach assets of a irrevocable trust (once settlor dies)?
A: yes to the first question. As to the second, the
general rule
is that creditors of a settlor of an irrevocable trust cannot
reach the
corpus because the settlor--lacking the power to revoke--also
cannot
reach the principal. An exception is a revocable trust
that
becomes irrevocable because the settlor died--in that case,
creditors
of the settlor can reach the assets to the extent that the
settlor
could have reached them during life by means of revocation.
Q7) Do the CPC codes 100 and 101 define property as being both
personal
as well as real property? I saw a rule where ownership of RP is
defined
by the laws of the jxn in which it resides. However, if a couple
is
domiciled in CA, under CPC 101 it seems that RP owned outside of
CA by
decedent can count as quasi CP.
A: such assets are not quasi-CP
**********************************
Q1) Will interpretation: Does the CA (Estate of Russell)
rule
say that the court can look at extrinsic evidence and the text
to see
if the text is reasonably susceptible to 2 or more
interpretations?
A: Yes
Q: Or does it say that if the language is susceptible to 2
or
more interpretations you can look at extrinsic evidence?
A: this is the traditional plain meaning rule.
Q2) Doctrine of Incorporation by Reference: My notes say
that no
witnesses are needed. Is this correct? Can you
explain?
A: You can only incorporate another document by reference if the
language of incorporation is in a valid will. So apply the
rules
regarding proper execution of a will. If the will is valid
and it
contains language the meets the requirements for incorporation
by
reference, the document referred to becomes part of the will.
Q3) Antilapse: Can antilapse apply to both specific gifts and
the
residue?
The way I understand the analysis under the Modern Rule is:
- If a specific gift lapses (bc someone dies)
it
goes to the residue and gets split by the remaindermen. If
a gift
to the residue lapses it stays in the residue and gets split
between
the remaindermen.
- There are 2 ways to stop a gift from
getting split
by the remaindermen:
1) Antilapse (if issue, no
contrary intent and kindred)
2) Class gift
Is this correct?
A: That's right. In addition, it is not just specific
bequests
per se, but also demonstrative and general legacies that can
lapse and
become part of the residue.
Q Also, if it's deemed a class gift, it can't go to the
issue of
the class member, can it?
A: The effect of a class gift is that the surviving members of a
class
share the entire gift. However, you need to apply
anti-lapse
first. If the gift can be saved by anti-lapse, you give it
to the
issue of the recipient and you do not need to do the class gift
analysis.
Q4) Exceptions to the "no further inquiry rule":
-If the settlor authorized the
transaction
-Trustee makes full and fair disclosure
to the
beneficiaries and they all consent.
Are these AND or OR exceptions?
A: Either will allow further inquiry. And remember
this
applies only to self-dealing.
Q5) Damages: Can you get appreciation damages for both a
breach
of the duty of loyalty and a duty of care. After going
through my
notes it looks to me like you can get them for a breach of the
duty of
loyalty (for both self-dealing and CoI) and for a breach of the
duty of
care if the trustee didn't have the right to sell?
Is this right? If it is, then why in Rothko did the ct say
there
had to be a breach of the duty of loyalty to get appreciation
damages?
A: It's right. It's because in Rothko the fiduciaries had
the
right to sell.
Q Also is undoing the transaction a remedy for any
fiduciary breach? Or just self dealing? EV
A: For our purposes, only for self-dealing.
***********************************************
Q: For the Per Capita at Each Generation system under the
UPC, is
it possible for people further down on the stalks to get more
money
than those higher up? Let me explain: If a decedent had,
say, 10
children, all but one of whom predeceased him, and one
grandchild by
one of the deceased. You now have two heirs: the child and
the
grandchild. Now, according to my notes, under the UPC
system you
divide the inheritance equally at the level where someone is
alive,
place all the money that would have gone to the deceased
relatives into
a pot, and distribute that amount equally into the next
generation
(repeating the process if there is someone dead in the next
generation). Under my example, the child only gets 1/10 of
the
estate, whereas the grandchild takes the other 9/10. Is
this
correct?
A: No. You give one share to each living descendant and a
share
to each deceased descendant with living issue (and place the
latter
shares into a pot if there is more than one deceased descendant
with
living issue). In your scenario, there is only one
deceased child
with living issue. Thus, the decedent's child and
grandchild each
get half of the estate.
*********************************************
Q: I have a question about support trusts. In my class
notes,
I have written down that if all of the income is to be paid to
the
beneficiary then it cannot be a support trust. So, why can't the
principal be used as support? AA
A: In many cases the principal could indeed be used for
support,
depending on the language of the trust. The problem is
that in
receiving all the income, the bene might be getting more than is
needed
for support, so it looks more like a mandatory trust as to
income
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Q: I understand that for per capita at each generation you
take
the first level where someone is living and split the property
according to live lines. Then the issue of the dead
individuals
at that generation split a common pot. However, what if
the
generation after that has predeceased have another issue.
Do you
repeat the process or do you split evenly?
For Example: X passes with three children A B C (A is the only
one
alive). B has once child G, and C has one deceased child H
who
has a child Z. Would G and Z share in a common pot or
would the
per capita at each generation analysis repeat at the level of G
and H.
TR
A: I assume G and Z survived X. First, A gets
one-third. B
and C are allocated a
2/3 share which goes into a pot because they are deceased but
have
living issue. You drop down to the next level where
someone is
alive (G and H; G is alive) and allocate a share to each live
person
and a share to
each deceased person with living issue (G gets 1/3 and H is
allocated
1/3). For H's share, repeat the process--Z gets 1/3.
There
is no need to create a pot at this last stage because there is
only one
taker.
*************************************************
Q1) Spendthrift provisions are unenforceable as to tort
creditors:
is it only applied to torts arising from accused felonies or
does it
include any tort?
A: if the tort meets the elements of a felony (by a prepoderance
of the
evidence), the trust must pay the tort creditor.
Q2) Under the requirements for holographic wills to be valid,
what does
making informal changes without signing mean? Would I be able to
cross
out names of beneficiaries, add names on margin, add new
property
without having to draft a new will?
A: with a holographic will, yes
Q4) Is extrinsic evidence a concept applicable only to wills or
can it
be applied to trusts? SS
A: In Calif., trusts are interpreted similarly to wills,
so the
rules relating to extrinsic evidence (including the Russell
case) would
also apply to trusts.
***************************************************
Q: When you get a chance: Under Ademption by Extinction, when determining whether or not the specific gift is still in the estate, I know that we need to determine whether the change is one of substance or form. I don t really have a clear definition as to what a change of substance v. a change of form means, except the examples you gave in class. Can you please give me a definition of how I can identify if it is a substance or form change. MGA: There is no clear definition, beyond the notion that a change in form is quite minor and does not change the nature of the property in question.
**************************************************
Q: Does a living trust have to be created before or at the time the pour over will is executed? Or, may it also be created after the pour over will is executed?
A: It can be created after the will is executed--see the UTATA
**********************************************
Q I have a question on when to apply the CA anti-lapse
statute. If you are dealing with the residue legatees, then do
you
apply the anti-lapse statute?
A Correct
Q Also, under the antilapse statute, the term "kindred"
would
include adopted children? AA
A yes
*********************************************
Q: To what extent do we need to know UTATA? The only thing I have in my
notes is that the UTATA says that pour over trusts do not need to be
in existence at the time of will execution. However, the course
outline that is keyed to the book goes into more detail about UTATA.
Could you clarify please? Maybe I missed some notes in class?
Q1) Clymer v. Mayo - why did the ex-husband not get the trust at her
death? Because it acted as a pour over trust for the residue and thus
probate wills rules apply where the ex-spouse does not take under a
will? Or is it simply because when there is a divorce all will and/or
trusts cancel the gift to the ex-spouse unless otherwise indicated?
For example, if it had simply been a regular intervivos revocable
trust without any pour over provision/function from the will, and the
beneficiary was the ex-husband, would the trust corpus go to the
husband or would it revert to the residue of the estate?
Q2) I don't really understand the difference between self proving
affidavits and attestation clause. I know SPA's are on separate
document while the attestation clause is on the will itself. And I
know that the SPA uses past tense language while the attestation
clause uses present tense language but I am not sure of the legal
significance of the difference between each. And besides the fact
that an SPA can get detached or lost from the will itself and an
attestation clause necessarily is attached to the will, why is one
better or worse than the other? CT
*************************************************************
Questions below are from the 2008 class
*************************************************************
Q From what I remember, we mentioned in class that, when dealing with an oral promise to return property, if the conveyance involves real property, it is unenforceable. However, if it involves personal property, it might be enforceable. However, the Hieble case, where the son had promised his mother to return her property back to her after she overcame her cancer, involved Real Property. So, I'm confused...A: An oral promise to convey real property is not enforceable in a court of law. However, a court of equity can step in, using the equitable remedy of a constructive trust, to prevent unjust enrichment. Technically, the court is not enforcing the oral promise, but rather it is preventing unjust enrichment. So an oral promise to convey real property is not valid, but if you can meet the narrow requirements for a constructive trust (promise, reliance, unjust enrichment) a court might impose a constructive trust that compels the holder of the property to convey it as promised.
**************************************************************
Q: If you ask us on an exam: is this a valid will, would this be a correct way to analyze it?
1. Capacity (both legal and mental)
2. Testamentary Intent
3. Formalities (writing, signature and witnesses)
4. If formalities were not complied with, is it a valid holographic will?
If there is no evidence of lack of sound mind or age (for capacity) do we just assume that it's been satisfied, or do we not even bring up the issue? SG
************************************************************A: a reversionary interest states that if a trust fails, it reverts to the settlor and/or her heirs. This gives them standing to sue to enforce the gift. Don't confuse this with a gift over, which states that if purpose A fails or becomes impossible, the trust should be used for purpose B. A gift over usually defeats an effort to apply cy pres, because the trust instrument itself states what should happen if purpose A becomes impossible.
Q1. The settlor of trust has standing to enforce the terms of a chartiable trust if the settlor has a reversionary interest. My notes states that a settlor has a reversionary interest if the trust assets reverts back to the settlor or settlor's estate if the trust cannot be carry out its charitable purpose. If this is true, then shouldn't the settlor's intestate heirs also have standing to sue the charitable trust? Also, if a charitable trust fails b/c its puprose cannot be carried out, then doesn't the court impose a resulting trust on the trust assets so that the assets are returned to the settlor's estate? If that's true, then do all charitable trusts by default have a reversionary interest?
A: generally, yes
Q2. For an intended class, it must be shown that the testator intended the beneficiaries to recieve the gift as an intended class. My question is, under the plain meaning rule, can the court consider extrinisic evidence to determine whether the testator had such an intent?
A: yes
Q3. For ademption by extinction, do we follow the traditional rule or the CA rule? From my understanding, the CA rule has an additional requirement that the testator intended the gift to be extinguished by ademption. Should we follow this rule as the default rule for the multiple choice and the essay?
A: with the equitable charge, the recipient owns the property outright and is not subject to fiduciary duties.
Q4. I'm having a real hard time differentiating b/t an equitable charge and a trust. It seems to me that an equitable charge is essentially a trust since the testator is transfer property to 3rd person for the benefit of a another? What am I getting wrong?
A: don't worry about it.
Q5. I'm having a hard time understanding the rule against perpetuities is applied. I know that the rule requires that a trust must vest within 21 years of a life in being at the time of the creation of the trust. Does this mean that the trust must explicitly designate who the life in being is? Does the person have to be a beneficiary or the settlor? If the life in being isn't required to be designated, then how does the court determine who the life in being is?
A: Apparently, the theory is that animals and grave markers cannot be measuring lives, limiting an honorary trust to 21 years.
Q6. On a related note, I have in my notes that an honorary trust cannot last longer than 21 years. Is this correct? Couldn't the honorary trust last longer than 21 years since the 21 year requirement doesn't kicks in until the death of a life in being?
A: the latter.
Q7. If the recipient of a secret trust does not use the gift for its intended puprose, then does the court impose a resulting trust and return the gift back to S's estate or does the court impose a consturctive trust to ensure the trust is used for its intended purpose?
Q8. On a related note, when a court imposes a resulting trust, the court return the trust assets back to the settlor's estate or to the settlor's intestate heirs? I know technically they end up with the same result but this minor detail has been bugging me.A: usually the intestate heirs, because the estate is long gone.
A: that's generally correct.
Q9. Does the non-self-executing statute and the self-executing statute work concurrently? If so, does the non-self executing statute apply only to claims against the settlor's probate estate while the self-executing statute applies to claims against the settlor's non-probate estate (i.e. against the settlor's property held in will substitutes)?
************************************************************
A: you are not responsible for this section.
(1) Under UPC section 3-301, does a will start out with informal probate, and then once interested parties are notified, does formal probate then set it? Is it formally probated only by judicial determination? What are the grounds for this determination? Can a will only be informally probated? If so, how and why? Is it if it the will is not contested?
(2) There is a distinction between will gifts conditioned upon a religious faith of the beneficiary and those conditioned upon marriage of a person to a particular faith. The latter is permissible as long as it is a partial restraint on marriage, such as in Shapira, but the former is impermissible. Is this correct? Is it impermissible as violating the Constitution even though it is a private actor enforcing it and does not involve state action?A: We did not consider the religion cases, except to mention those that required a woman to be a "practicing Catholic"--held to involve too much court supervision and therefore unenforceable.
(3) Is a bypass trust a real trust or does it fall under the category of "trusts that are not trusts," such as honorary trusts? How is a bypass trust different from splitting a trust into income and remainder (principal) beneficiaries? How exactly does a bypass trust work besides as a tool to avoid the gift tax problem?A: don't worry about it. Yes, they are real trusts.
(4) CA quasi-community property rules only apply to personal property due to the ancillary jdx issue surrounding real property in other states, correct? Real property in CA, however, will fall under CA community property rules, correct? Is it correct that quasi-property only applies to debts?A: yes, maybe, no.
(5) One should only bring a tortious interference with expectancy tort claim in the alternative when first not succeed in a will contest claim, correct?A: not necessarily. Tortious interference would allow for punitive damages.
(6) For the plain meaning rule, is it correct that should only look to the text for interpretation, however, if it is ambiguous, can the court look to extrinsic evidence to resolve the ambiguity?A: correct
(7) Do the UPC and CA allow partial revocation of a will by physical act? I am all over the place on this issue.A: yes
(8) If you have a form will, and there is at least one material provision that is in the testator's handwriting and the testator signed it, will the printed provisions become part of the testamentary intent and thus part of testamentary document by means of the doctrine of incorporation?A: A few cases have incorporated the printed parts, but generally the answer is that printed parts are not considered to be part of the will in this situation.
(9) I am confused at the revocable living trusts (RLT). So, an RLT is a valid will substitute, but is it a trust? I know it needs the formalities of a trust. Since it is revocable, the creditors can still get at it to the extent that the beneficiary can? How does this change pre- and post-testator's death? JGA: RLTs are trusts and they are also will substitutes. Creditors of the settlor can reach the assets to the same extent that the settler can by means of revoking. This principle also applies after the settlor dies (even though technically the trust becomes irrevocable on the settlor's death)
*************************************************************
Q1. When dealing with Time of Death, this is my understanding: we apply the CL standard that requires irreversible cessation of circulatory and respiratory functions, then, if kept alive artificially, we apply the Modern standard of irreversible cessation of total brain function. THEN, when dealing with who died first, I have that if it is an attested will, we need clear and convincing evidence that the Testator survived by a millisecond. However, if the person died intestate, we apply the standard that requires death by 120 hours (is this the CA standard?). IS MY UNDERSTANDING OF THIS CORRECT?A: yes.
Q2. When dealing with Virtual Adoption, can the child inherit from his natural parents as well as his "adoptive" parents, and can the natural parents inherit from the child?A: maybe, but the answer is not entirely clear.
Q3. What is the analysis for when the parents die while the child is still a minor, and the friends/family adopt the child? Can the child inherit from the natural parents? Does it matter whether they were adopted at death of the natural parent or months later?A: the link to the natural parents is cut off (but remember that this happens after the parents die, so the children will inherit from the parents, but cannot inherit through them)
Q4. When dealing with Interested Witnesses, what is the rebuttable presumption? Is it a rebuttable presumption of a conflict of interest? Also, what happens if the presumption is/is not rebutted?A: read CPC 6122 for the details. If the presumption is not rebutted, the witness is limited to his or her intestate share.
5. With the Doctrine of Revival, do you need to prove intent to revive the first will?A: yes
6. Does Lapse apply to Specific, General, and Demonstrative bequests?A: yes
7. In class, you have an example of Abatement, and I cannot figure out how you obtained the result. The example was that the will said, "I give my Chevy (worth 50k) to A, 100k to B, 10k from my coin collection to C, and the rest to D." In this scenario, there is only 10k left in the estate. In class, you said that C and A get 5k each. If we're supposed to apportion the specific and demonstrative bequests pro rata, I can't figure out why we're giving each of them half (when the ratio is really is 5:1).A: you probably wrote the numbers down wrong. A and C get 5k each if the Chevy is worth 10k and C was entitled to 10k from the coin collection under the will. The other gifts are abated entirely.
A: in the Father Divine case, the court invalidated the gift (which is like using a resulting trust), because it was semi-secret.
8. In my notes, I have that cts allow for a Constructive Trust when dealing with Secret Trusts and a Resulting Trust when dealing with Semi-Secret Trusts. On the exam, when dealing with Semi-Secret Trusts, should we say that the court will impose a Resulting Trust, or should we follow the Father Divine case and use a Constructive Trust (due to the cts of equity)?
Also, with Semi-Secret Trusts, do cts automatically use a Resulting Trust? If not, what do you need to show, other than the fact that the conditions are not specified?A: the traditional rule, which we follow, is that semi-secret trusts are invalid bequests, so the gift will not be distributed to the legatee, or if it has for some reason been distributed, it reverts to the estate via a resulting trust.
Q9. In my notes, I have that where the sale of the trust property constitutes a breach of misfeasance, in addition to selling too low, the fiduciary may be liable for appreciation damages. Is this correct?A: If the t'ee sells for too little, breaching the duty of care, and did NOT have the right to sell, apply appreciation damages. Under Rothko, you can also award them for any breach of duty of loyalty.
Also, I'm a bit confused on how to calculate Appreciation Damages.A: difference between amount actually obtained and FMV at time of judgment.
Also, what are the damages for a Co-Trustee who failed to act in response of his co-trustees' conflict of interest?A: we didn't cover this.
10. In the student Q and A's, you wrote that the donor of a charitable GIFT has standing to bring suit. BUT whether the donor of a charitable TRUST has standing is an open issue. My question is: Does the donor of the GIFT need to retain a reversionary interest in order to have standing? Also, if the donor retains a reversionary interest, does that give his family standing (with respect to both gifts and trusts)?A: donor of a charitable gift has standing even without a reversionary interest. In the charitable trust situation, retaining a reversionary interest generally confers standing on the donor (and also his heirs, if they have a reversionary interest also).
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Q If there is a breach of the duty of self dealing, then the deal is undone unless it is sold to a bona fide purchaser, in which case the trustee would have to disgorge profits. But you also said at the end of the In re Rothko case that if there's a breach of the duty of loyalty then the beneficiary is entitled to appreciated damages. So if there is a breach of the duty of self dealing does that mean that the trustee must disgorge profits and pay appreciated damages? Doesn't that seem like double recovery? Or is appreciated values only for breach of conflict of interest? SG
*************************************************************
Q To meet
the
requirements under strict compliance, there must be an
attestation
clause? In re Will of Ranney this issue comes up.
I thought
there were two witnesses who witnessed and signed, but were
not read an
attestation clause?
A: technically, the rules for execution of
a will
do not require such a clause, but with a witnessed will it is
extremely
rare not to have one.
**************************************************************
Q I understand the CA rule with respect to ademption is that we look at whether the testator intended to extinguish the specfic gift. Assuming that the testator did NOT intend to extinguish the gift but the gift is no longer in the estate, would the devisee be entitled to the cash value of the gift? SC
Q Why didn't the Auburn case apply the Doctrine of Revival instead of DRR?
My notes say that under Revival, If you have one will and a second will which revokes it and you revoke/destroy will 2 (intending will 1 to take effect), then we can probate will 1.
And under DRR, I have that an example would be that the Testator Tore Will 1 on the condition that Will 2 would be valid. In that case, the court would not not probate Will 2, but will unrevoke Will 1.
This seems to be the fact pattern in Auburn. But in that case, they used DRR to unrevoke Will 2. Essentially, this looks to me like the above example, only backwards: T tore Will 2 on the condition that Will 1 would be valid. In that case, the court did not probate Will 1, but unrevoked Will 2.
Could they have used Revival in Auburn instead of DRR. If so, why didn't they? FT
*************************************************************
1) You mentioned last night that a notary can be a witness, however in my notes I have that a notary does not count as a witness, you must have 2 other witnesses. What am I missing? How does this relate to the affidavit??
A: if a notary simply notarizes a will, it does not count as a witnessing. But there is no reason a notary could not be an ordinary witness if he or she correctly witnesses the will.
2) Can you explain the doctrine of DRR? How is that related to the doctrine of revival or republication?A: DRR "unrevokes" a will that was revoked under a mistake of law or fact. A will can be revived if a later will, which revoked it expressly, is itself revoked and the T intended to revive the first will.
A: Dispositions in a trust are not normally revoked by will (but see Clymer v. Mayo)
3) I know that when A gets divorced, any gifts etc in A's will to her spouse B are considered revoked. What about a trust? If A gives B several items in A's trust when A dies, are these also revoked? What if A has set up a pour over trust which is supposed to give several items from A's will to B once it is probated, are these items revoked at divorce? If so, where do they go if everything was intended to go into the pour over trust which was then supposed to go to B?
4) Is this the analysis before lapse occurs? Look to see if you can apply antilapse(kindred and no contrary language) and then look to see if the devisees are an express or intended class, then if all fails lapse...correct?A: sounds about right.
5) What is ademption exactly? Specifc gifts are adeemed by extinction and general gifts are adeemed by satisfaction?A: yes, a specific bequest can be extinguished. General and demonstrative gifts can be adeemed by satisfaction, but see class discussion for details. There is no ademption by satisfaction of specific bequests--they simply adeem by extinction.
Also, I thought a testator could/was allowed to give away or sell gifts in his estate that he intended in his will to give to other people(acts of independent significance)? Because in my notes I have that if this happens, the proceeds of this sale or gift go the intended beneficiary via the ademption doctrine as long as it is a specific gift??A: I don't get it.
A: correct. And he might be liable for a tort if he was trying to hide the assets in this manner.
6) One last thing, a trust does not hide/shield a husband from giving the wife some assets after divorce correct? For example if he buys a car with CP funds and puts it in a trust, the wife is still entitled to 50% of this correct?
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Question #1: Regarding the "per capita" system of dividing assets among the decedent's issue, I have a note that under the California Probate Code, if a will says "per capita," that Cal. Prob. Code § 240 and the Modern Per Stirpes should be applied instead. For purposes of the Exam, should we ignore this rule and apply the per capita system when you say "per capita"?
A: for the exam , you can assume "per capita" really means per capita.
Question #2: I apologize if I am repeating a question previously asked; however, I could not find the source for a note in my outline. If a document is incorporated by reference into a Will (e.g., a Memo book) – how is that incorporation affected by future changes the incorporated document? For example, I execute a will on 1/1/2008 and incorporate by reference a notebook of mine that was in existence on 1/1/2008 (there is also intent and sufficient description). Q2a: If I make changes to the notebook on 3/1/2008 and then die on 6/1/2008, what version of the notebook (if any) is incorporated by reference and properly submitted for probate?
A: changes made to the incorporated document after the will is executed are not valid because those changes were never properly incorporated into the will (but remember that republication by codicil can be helpful sometimes)
Q2b: And would this same rule apply for Integration if the notebook were present at the time I executed the will (and I intended it to be integrated)?
A: yes, same principle applies.
***********************************************************
Q1. For purposes of anti-lapse, is the CA rule that the transferee
can be kindred of the testator OR kindred of the deceased's spouse?
A: yes.
Q2. With respect to self-dealing, is the rule that if one gets theA: yes, but remember that the consent/disclosure must be before engaging in the transaction.
consent of all the beneficiaries and provides full disclosure of the
transaction, then the "no further inquiry" would not apply and
instead we inquire as to whether the transaction was (1) done in good
faith and (2) fair and reasonable.
Q2b: Could you give an example of whereA: can't think of one right now--a more likely scenario is that it is in good faith but not reasonable.
the transaction would be fair and reasonable but conducted in BAD faith?
Q3. I understand how appreciation damages apply in the context of aA: For assets that drop in value you do not apply appreciation damages--it only applies if the value goes up. If the T'ee engages in self-dealing and is forced as a remedy to give back the house, there would be no issue of appreciation damages, even if the value rose. But if the t'ee sold the house for $100,000 to a third party and at time of judgment the house is worth $200,000, the t'ee would have to disgorge profits on the sale and also pay $100,000 in appreciation damages.
conflict of interest, but how would they apply in a self-dealing
scenario? For instance, if the normal remedy for self-dealing is that
the transaction is undone and therefore the property is restored, how
would the trustee pay appreciation damages on say, a house that he
returned and the house has actually dropped in value? SC
**************************************************************
Q: In my notes I have written down
that a
codicil amends an
existing will. In Johnson v. Johnson, (P. 279),
however, the
court holds that the holographic codicil republished the invalid
typed-written portion of the testator's will. What I don't
understand
is how a codicil, which by definition amends an existing VALID
will,
can republish an INVALID will. Is/can a codicil been viewed as
an
independent will and thus using a theory of incorporation by
reference,
the typed-written will is then validated?
SC
Question #1 Intestate Succession & Quasi-Community Property: A student previously asked whether real property located outside California is not quasi-community property at the time the testator dies, to which you responded "depends." In my notes, I have that the status of the real property (QCP or SP) depends on the laws of the jurisdiction where the real property is located (and succession is determined under the laws of that jurisdiction as well). Q1(a): Did you answer "depends" because the answer depends on whether that jurisdiction is a community property or common law jurisdiction?A: correct
Q1(b): This may be splitting hairs (since it won't matter for succession), but if real property is located in another community property jurisdiction, would that real property be considered community property or quasi-community property for California purposes (i.e., would it pass to the surviving spouse under California Probate Code ("CPC") 6401(a) or (b))?A: it would go according to the law of the jurisdiction in which it is located, not California law.
Question #2 No-Contest Clauses in Wills: In both the online review lecture and the online student Q&A you mentioned that the "default rule" for validity of a no-contest clauses in a will is that such clauses are "valid unless there is probable cause to contest." In my class notes, I had a California rule that they are valid unless the contestant (a) alleges forgery or subsequent revocation by a later will; or (b) contests a provision benefiting the drafter of the will or any witness. These two standards do not necessarily conflict, but they also are not the same (the default rule supplies the burden, whereas California provides potential substantive challenges). For purposes of the Multiple Choice, should we apply the default rule, California, or both?A: the default rule.
Question #3 Substantial Compliance: For the curative doctrine of Substantial Compliance, is the inquiry into whether the document substantially complied with the requirements merely a facts and circumstances inquiry? Or, like with the Dispensing Power, are there certain formalities that cannot be missed (e.g., a signature)?A: it is a "near-miss" standard--small deviations from the rules do not invalidate the will.
Question #4 Plain Meaning & Estate of Russell: In the online review lecture, you stated that we should follow the Estate of Russell rule for purposes. Does this mean that we should follow the Estate of Russell rule for purposes of multiple choice questions? (I apologize if this question seems obvious, but in many other situations we are applying the default/traditional rule for purposes of multiple choice, and I want to be clear on which rule to apply.)A: On multiple choice, I would specifically ask about (and mention) the case, as in "according to estate of Russell..." If you have an interpretation question on the essay, it would probably be best to try the plain meaning rule first, then see what the result would be under Russell.
Question #5 Anti-Lapse Statutes: In my class notes, I have an "orphan" note that "if the spouse predeceases, then anti-lapse does not apply." I cannot seem to find a situation where this would apply, since a person is still kindred under CPC 21110(c), even if your genetic relation is through the testator's deceased spouse. Is there a situation where if the spouse predeceases, the anti-lapse rules do not apply?
A: the spouse is not kindred of the testator in most situations, so I presume the missing hypo is that the testator has a gift to his spouse and she predeceases the testator--antilapse does not apply.
Question #6 Exception to Ademption by Extinction: This may be a very small matter, but in my notes, I have that the general rule for insurance proceeds from the condemnation or destruction of a specific devise/bequest is that they still adeem. However, the California rule is that such devise/bequest will not adeem (presumably the devisee/legatee will get the proceeds in place of the specific devise/bequest). For purposes of the multiple choice, which rule should we apply?A: don't worry about it.
Question #7 Exoneration of Liens: In my notes, I have a traditional and a modern rule for whether liens (e.g., a mortgage on a house) are paid off before the property is transferred to the heir/devisee (traditional = yes; modern = no). For purposes of the multiple choice, which rule should we apply?A: the modern rule.
Question #8 Standing for a Charitable Trust: In my notes, I have that for purposes of the multiple choice, we should apply the rule that the Donor of a Charitable Trust DOES have standing to bring suit (following the New York rule from Smithers and the California rule). However, in the online review session, you stated that we should follow the traditional rule that the Donor does NOT have standing (following the Carl J.Herzog Found. v. Univ. of Bridgeport case). For purposes of the multiple choice, which rule should we apply? DJWA: We should assume that the donor of a charitable GIFT has standing--this is also the California rule. Whether the settlor of a charitable trust has standing is an open question.
*************************************************************
Q1. Do we need to know the specific CPC
section
numbers?
A: no.
Q2. For adoption, do we follow the UPC
exception
that if
adopted by the
spouse of the natural parent, you can still inherit from the
other
natural parent (dual inheritance allowed) or does this not apply
(no
dual inheritance allowed at all)?
A: we follow the UPC rule here.
Q3. For children conceived after the father's death, I have two
sets of
requirements, not sure which one to follow. The first requires
judgment of paternity by the court, time limit of 1-2 years,
consent
of father to use sperm to create children, and proof that father
agreed to support resulting child. The CA rule says specified in
writing and signed by witness, notice given to interested
parties
within 4 months of death, and child was in utero
within 2 years of
death.
A: Follow the principles laid out in the case we read, not the
California
rules.
Q4. For revival of the old will do we follow
the
CA rule
where the
old will is revived if it's evident that testator intended the
1st
will to take effect or do we go through the DRR requirements or
are
they essentially the same thing when applied?
A: Apply the doctrine of revival.
Q5. For incorporation by reference is it true
that
changes
to the
incorporated documents are not valid if made after the
incorporation?
For example in Clark v. Greenhalge,
the
will
incorporates the
memo/notebook, but if the testator keep adding things to the
memo/notebook after she executes the will, is that valid? If
they are
valid, does that mean the will can be informally changed after
execution of the will w/o following the formalities (like act of
independent significance? Are they acts of independent
significance?)
A: What is incorporated is the document as it exists at the time
of
incorporation. Later additions or modifications are
technically
invalid.
Q6. To form a natural class, each member of
the
class is
named
individually (such as all of the testator's children), but must
the
testator also intend to create a class (requirement of
intention) as
in Dawson v. Yucus? Alternatively,
even if
there is
no natural class,
the testator can still create a class if he intended it to be a
class?
A: If you make a gift to A, B, and C, and they form a
natural
class, you
do not need to show intent--because they are a natural class,
the law
essentially presumes intent to treat them as a class. And
if the
recipients are not an express or natural class, you can still
try to
prove the testater intended them to
be
treated as a class.
Q7. How do you tell when something is precatory
language and not
actually a trust created w/ legal obligation?
A: This is always a question of interpretation of the
language--based
on the
language used, did the testator merely intend to impose
a
moral
obligation (precatory) or a legal
obligation?
Q8. I have in my notes that life insurance
policies and
contingent
remainders are considered property in existence, making the
trust
valid. Why are they not future interests (expectation or hope of
receiving property in the future) and therefore invalid as trust
property? Are royalties in general considered future interests?
A: Because they are legally enforceable property interests.
Q9. In terms of the duty not to delegate
discretionary
duties, is the
rule for inexperienced trustees to consult someone and exercise
their
own judgments or can they actually delegate by selecting someone
carefully and supervising/monitoring them? AG
A: the traditional rule (which we will follow) is that the t'ee must exercise her own judgment in
all
discretionary
matters, although some modern courts are allowing more
delegation, if
done
carefully.
*****************************************************************
Q: class example: T gives his chevy
worth 10,000
to A; $10,000 to B; $30,000 from sale of coin collection to C;
rest to
D. T dies with the chevy and 10,000
in
cash.
cash. So, B and C were owed a total of 40,000 and the estate
only had
20,000. the order to abate gifts is 1st residue, 2nd
general, 3rd
specific. So, why did the specific gift of the chevy
get sold for cash
to pay B and C?? GP
A: This is mostly correct, but the last gifts
to
be abated
are specific and demonstrative, pro rata. As I
said in
class,
another way to say it is to pay specific/demonstrative gifts
first,
then
general legacies, then the residue.
***************************************************************
Q: Regarding the statute of limitations that
allows
creditors to bring
claims on decedent's estate:
1. when decedent dies testate and the will goes through probate
- is
it the responsibilty of the
executor to
notify the crediotrs?
A: The exact procedure is stipulated by statute, but you are not
responsible
for the details.
Q2. when the decedent dies intestate and/or
has a
trust -
does someone
have to notify the creditors in these situations?
In my notes I have that only when there is a will do the
creditors
have to be notified because there is state action - and they
must have
notice in order to not violate their due process rights... but
without
probate I have no notes on whether creditors need to recieve
notice or
not....hope that makes sense? SE
A: If there is no probate, there is not state action and no
constitutional
notice requirement. The self-executing statute starts
running
automatically and cuts off the rights of creditors in one or two
years--notice
does not matter.
*************************************************************
I had some hypos regarding Ademption
by
Extinction that I would like
your help in clarifying. Could you please identify the
result of
each
hypo and briefly explain the legal theory behind it?
Q1. "I give my 100 shares of Kodak stock to X."
Kodak
stocks split
2:1 and as a result there are 200 shares of Kodak stock.
What
does X
get?
A: 200 shares of Kodak stock.
Q2. "I give my 100 shares of Kodak
stock to
X." Prior to death
Testator sold 100 shares of Kodak stock and used proceeds to
purchase
100 shares of MSN stock. What does X get?
A: Nothing. The gift is specific and extinguished (unless
X can
show that
the testator did not intend to extinguish the gift).
Q3. "I give my red Honda to X."
Prior
to death Testator sold red
Honda and used proceeds to purchase silver Mercedes. What
does X
get?
A: same result. Most courts would say that this is not a
mere
change in
form.
Q4. "I give my red Honda to X."
Prior
to death Testator traded red
Honda for silver Honda. What does X get? BN
A: same result, most likely, but a closer case.
***********************
>Q If Dawson v. Yucus was
decided under
our
anti-lapse rule then the gift
>of the farm to the dead nephew would not lapse into the
residue,
but
>go to the dead nephew’s issue, making a class gift
analysis
>unnecessary?
A: yes. .
Q: Is the UTC our rule regarding the duty to inform and
account to
>beneficiaries?
>
A: Follow the rule as we gave it in class and during the
review (it is
fairly
general).
QCan extrinsic evidence be looked
at to
decide if a
holographic will
>has the necessary testamentary intent on the theory that
the
extrinsic
>evidence would go to the validity of the will?
>
A: Yes.
Q: What is our rule for multiple choice for interested
witnesses
signing
>a will – is there a prsumption
of
fraud,
undo influence, or duress, or
>is the gift to the interested party invalid, or is the
entire will
>invalid?
>
A: It creates a rebuttable
presumption of
undue
influence.
Q Is there a causation element to the fiduciary duty not to
delegate
and
>are there causation elements for all the breaches of the
fiduciary
>duty of care?
Yes.
QWhat fiduciary duties were
violated in Marsman v. Nasca?
>
A: Probably the duty to administer the trust in accordance
with the
trust
instrument, and the duty to pay income to the beneficiary.
Q Is it true the real property acquired outside of
California by
a
>married couple domiciled in California is not
quasi-community
>property, and that quasi-community property only
encompasses
non-real
>property?
>
A: Objection: compound question. (1) depends; (2)
true.
Q: Do we use a 120 hour standard for survival (if the issue is
>simultaneous death)?
>
A: only for intestacy.
Q Can D.R.R. be used where a codicil is executed to a
will based
on a
>mistake of fact – in that the codicil revoked a section of
the will
>based on a mistake of fact and the testator would not have
revoked
>that section of the will had they known the true facts?
>
A: If I understand the question correctly, yes.
Q Are damages for a breach of the duty of care where the
breaching party
>has the right to sell adjusted for inflation?
>
A Maybe.
Q Under UTATA can a pour over trust be modified just as
informally after
>the settlor has died? DL
A: No--in that case you need to go thought the more formal
modification
procedure we learned in class--unforeseen circumstances, etc..
***********************************
>Q: Can an properly executed codicil make a fill-in the
blank
>will valid? Based on the Johnson Rule, it seems that
if the
codicil
>was properly executed and the codicil and fill-in will
could be
read as
>one document then it should work? How about through
incorporation by
>reference?
A: I assume you mean a form will that is not properly
executed.
According
to Johnson, the answer is yes, but only if you decide that the
holograph was a
codicil to the form will. A holographic will could also
incorporate the
form will by reference, but the elements of incorporation
would have to
be met
("I hereby incorporate by reference a form will that I filled
out on
this
date...")
*******************************
> Q: Does the doctrine of substantial
compliance and the
harmless
>error rule apply to holographic wills or only to attested
wills? BC
>
A: In theory, either one, but it is less likely with
holographic wills
because
the formalities are less.
*******************************
>Q If a gift in a will was revoked by operation of
law (e.g.
divorce),
>does the gift go by intestacy or back to residue?
>
A: If the gift is revoked, it remains part of the
estate.
If there
is a valid will with a residuary clause, it goes via the
residue.
Otherwise, the gift is not disposed of by will and goes by
intestacy.
>Q: Is the only time a gift falls into residue when a
beneficiary
predeceases T? DK
>
A: Any part of the estate not disposed of by specific
bequests is
part of
the residue. Rememnber that
the
residue refers
to all the rest of a person's probate estate. Thus, a
bequest
that fails
for ANY reason is part of the "rest" of the estate and becomes
part
of the residue.
*****************************
>Q: I understand republication by codicil to be when a
testator
revokes
>will 1 by executing will 2. Then, testator executes a
codicil to
will
>1. Will 1 is republished by codicil and will 2 is revoked
by
>implication.
>
A; No. When you execute a valid codicil to an existing
will, that
codicil
republishes the will. As a result, you must read the
will and the
codicil
as a single document, dated on the day the codicil was
executed.
In
addition, under the Johnson case, if the will was improperly
executed,
republication has the effect of making it a valid part of the
will.
>
>Q: Can the doctrine of revival be applied to this
situation? Is it
>correct to say:
>Testator executes will 1. Then, testator executes
will 2,
which
>revokes will 1 by an express clause or
inconsistency. Then
testator
>executes a codicil to will 1. Is it correct to say
that will
1 is
>revived by the codicil or does revival apply only when
testator
>revokes will 2 with an express intent to revive will 1?
>
A: Only partially correct. You should have a look
at CPC
6123(a)
for the revival rule.
*********************************
>Q1. Must the assets be retitled
in the
name of a
trust if you declare
>yourself trustee over those same assets?
A: Yes, if they have title documents.
Q2. When the trustee and settlor
and
different
people, a trust can be
>created in two ways: 1) delivery of a trust deed OR
2)delivery of
>trust property with some evidence (written if real
property) of the
>settlor's intent to give the
property
in
trust? Is this true?
A: in this case, the trust is created by a deed or indenture
of trust,
and
delivery of that deed to the trustee.
Q: Also, can a trust deed be oral? What exactly is a
trust deed?
EO
A: The trust deed is a document that creates a living
trust. It
cannot,
by definition, be oral.
**********************************
1) In your Dick & Jane hypo where there is a formal will
that says
"To
Dick" (his son) and then the Testator has another child and he
wishes to
change the will. If he simply crosses out the sentence
containing "To
Dick" and adds (in his own handwriting) "To Dick & Jane"
and
signs it,
that creates a holographic will, yes?
A: yes, if it is an understandable sentence and a material
provision.
But what happens to the rest of the provisions of the formal
will that
are still typed? Are they invalidated so that only the
portions in the
testator's handwriting and signed are now valid as a
holographic will?
A; your hypo would create a partial revocation of that
provision (and
perhaps a
codicil substituting a new gift). The rest of the will remains
valid as
is.
2) On your handout of trust language, #7 states: "No interest
in the
principal or income of this trust shall be anticipated,
assigned,
encumbered, or subject to any creditor's claim or to legal
process,
prior to its actual receipt by the beneficiary."
In my notes I have that this is a spendthrift provision
because both the
voluntary and involuntary alienations are disabled. I
understand that
the involuntary alienation is disabled because of the part
about
creditor's claims. Is the voluntary alienation disabled
because no one
can anticipate or assign an interest in the principal or
income so that
goes to the beneficiary's right to transfer?? AM
A: Anticipating or assigning income often means you sold the
right to
receive
the income in exchange for a lump sum--that would be voluntary
alienation.
**********************************************
Q Modern Portfolio theory: how do you reconcile the
requirement
of
taking the individual beneficiaries' needs into account (and
preferring, say, income beneficiaries if the settlor
implied that--
like if the income beneficiary is the settlor's
old
mother, and the
remainder beneficiary is a charity) with the duty of
impartiality?
A: Because the settlor's
intentions
govern. If the settlor
wants her
mother well
taken care of, that wish overrides the duty of impartiality.
**************************************************
Q1. What is the rule with respect to the validity of a
no-contest
clause in a
will?
A; valid unless there was probable cause to contest.
A2. In order for a codicil to be valid, does it have to
satisfy
the
formalities of either an attested will or a holographic will?
A: yes
Q3. With respect to the plain meaning rule, if we
determine the
language
of a will is ambiguous, then extrinsic evidence is admissible
to
determine what
the language means. Can we admit extrinsic evidence for
both
patent and
latent ambiguities?
A: yes, we aren't making that distinction.
Q4. With respect to pour-over trusts, I understand that
the pour
over
provision language in a will “funds” a trust & other
language
in a will can “create” a testamentary trust. Therefore,
a
pour-over trust is not the same thing as a testamentary trust.
a. However, is it possible
for a
pour over
provision in a will to fund a previously created testamentary
trust? Or
does the trust being funded have to be a living trust?
A: assets could pour over via the will of A into a
testamentary trust
created
by B.
b. A living trust that is
funded
via a pour
over provision in a will becomes funded and “valid” after the
testator’s death. However a living trust is created and
“goes
into effect” during a settlor’s
lifetime. What is the difference between a trust that
“goes into
effect” and a trust that is “valid”?
A: I don't believe there is any difference in most cases.
Q5. What is the definition of a trust
failure?
Does it mean that a trust was in fact created, but that it
could no
longer pay
out because there is no one to pay to?
A; A trust usually fails because it becomes impossible for it
to
continue in
existence. But it can also fail if it was not validly
created.
In the Clark v. Campbell case, did the trust fail or was the
trust
never
created? I think the trust was never created because “my
friends” did not indicate an ascertainable trust
beneficiary.
Does
the distinction matter?
A: The attempt to create a trust failed.
Does a resulting trust apply when there is both a trust
failure and a
failure
to satisfy the creation requirements of a trust?
A: I suppose it could. But if an attempt to create a
testamentary
trust
fails, you normally don't need a resulting trust because it
will fall
into the
residue or go by intestacy.
Q6. When a settlor
dies, the settlor’s creditors can
reach to the same extent
they
could reach when the settlor was
alive.
However, when an income beneficiary dies, the income
beneficiary’s
creditors are completely cut off – is that true?
A: yes.
Q7. If a settlor is
dead, then
a
mandatory trust can be terminated before its natural end if
you can
prove that
there is no remaining material purpose to be carried
out. But if
the
trust was mandatory as to income & was supposed to provide
lifetime
income
to a person, when would there be no remaining material purpose
to be
carried
out? Can you please provide an example of a trust that
is
mandatory as to
income that can be terminated before its natural end?
A: if the only purpose is to provide income, and the
beneficiary does
not
particularly need lifetime support, I suppose you could
terminate it.
Q8. I still don’t understand the difference
between a
marital deduction trust and a bypass trust? I understand
that a
bypass
trust is funded with an exemption amount & paid to a
spouse, and is
used to
prevent a spouse’s estate from paying estate tax twice.
How is
the
marital deduction trust different?
A; The marital deduction trust usually includes any
assets of the
deceased spouse that go to the surviving spouse beyond what is
in the
bypass
trust.
*****************************************************
Q: Can an administrative deviation be used to make an
invalid
trust
valid, such as a candy trust or discriminatory trust, or must
the trust
already be valid before it can be corrected? TC
A: It has sometimes been used for that purpose.
**********************************************************
Q: When a 2nd will expressly revokes a 1st will (which
is
otherwise
valid), and the 2nd will is then contested, would the first
will be
revived? Or would the estate be transferred by inheritance? I
am
asking
this because I am trying to get at the issue of whether the
testator's
heirs
would have standing to bring a will contest or whether only
the
beneficiaries
under the 1st will would have standing to contest the 2nd
will? RK
A: If the second will is challenged and found invalid, it will
not have
revoked
the first will, thus the first remains valid. For this
reason,
anyone
with a pecuniary interest in the first will has standing to
contest the
second.
**************************************************************
>Q: I am getting a bit confused as to how to approach a
"lapse"
issue on the
>exam. I realize that on the exam we are to use the
Modern CA
rule re:
>lapse. In this case, I know that we should do an
anti-lapse
analysis
>and that a class gift analysis is unncessary
b/c
the anti-lapse statute
>covers a class gift as well.
>
A: If you have a gift in a will "to A and B" and A precedeases
the testator, you will try to "save"
the gift by applying anti-lapse (which would give A's gift to
A's
issue).
If that does not work, you try to apply class gift analysis
(which
would give
A's gift to B). If neither works, A's gift lapses and
goes into
the
residue.
>Q: My question is: are we ever going to use the CL
"no
residue
of a
>residue" rule at all? And if so, if we do a lapse
analysis
under
the
>CL, it seems to me that we would only be doing a "lapse"
and a
"class
>gift exception" analysis (and no anti-lapse analysis b/c
there is no
>statute). Am I correct in my assumptions? Or
should we
ALWAYS
do an
>anti-lapse analysis EVEN IF we are analyzing under CL.
>
A: Under the modern Calif. approach, the residue is
treated as a
class
gift. This, suppose "residue to A and B" and A precedeases testator. Once
again, try to
apply anti-lspse. If that
doesn't
work, B takes the entire
residue.
>Q: The reason I ask is b/c I was looking at one of the
questions in
your
>website and you instruct the student to first apply the
anti-lapse
>statute, and then see if a class gift analysis can
apply. I
was under
>the impression that anti-lapse only applied under the
Modern CA
rule and
>that there was no such thing in CL. PLEASE
HELP!! I AM
SOOO
CONFUSED. SY
>
A: That is correct--first try to apply anti-lapse and if that
does not
work,
try to apply class gift analysis to a specific or general
bequest. With
the modern rule (abolishing the no residue of a residue rule),
a gift
of
residue to A, B and C effectively treats A, B, and C like a
class.
So in case of a possible lapse in the residue, simply try to
apply antilapse--if that fails,
there is no need for
class gift
analysis, because the modern residue rule takes care of the
problem.