Week 5
SEPTEMBER 18, 2014
Last Week
 Finished Talking About Internationalities
 Went Through Formalities
Internationalities
Formalities
Capacity
In Writing
Undue Influence
Signed By The Testator
Fraud
Witnessed
Duress
OR Holographic
Components Of The Will
 Documents Outside of the Will
 Incorporation By Reference
 Acts of Independent Significance
 Ambiguous Language
 Probate Code Sections 21120, 21121, 21122 Sets Forth The
Following:
Every Provision Is To Be Presumed To Have An Effect
 Likewise, Every Will Is To Be Presumed Valid
 If One Provision Is Ambiguous, Another Provision May Be
Referenced To Explain The Ambiguous Provision
 Words Should Be Given Their Plain Meaning, Unless They Are
Technical Terms, Unless Then They Should Generally Be Given
Their Technical Meaning

Lapse
 What Does it Mean to Lapse?
 When a beneficiary predeceases the testator, and there is no
contingent beneficiary, then the gift lapses


A lapsed gift will go to the residuary, or if none, then the gift will
follow intestate succession
When a beneficiary is dead at the time the will is executed, the
gift is void, and the lapse rules control
Anti-Lapse
 Probate Code Section 21110 reverses the common
law dynamic

Instead of the gift lapsing unless the will provides otherwise,
Section 21110 provides that the issue of a predeceased
beneficiary will step into the place of the predeceased
beneficiary unless otherwise provided by the will.
 Estate of Tolman
 The Court found that the disinheritance clause did not express
an intent to reject Probate Code Section 21110, only to express
an intention not to provide any other specific gift

Why is that not the same thing?
Ademption
 What is Ademption?

Traditional Rule: Ademption by extinction is when a specific devise
of personal or real property is no longer the property of the testator
at their death

What is a specific gift?
 Specific gifts are gifts that are personal or real property identified
with specificity, and not solely for their value
• Example: “I give my son $100”
• Example: “I give my son my rare $100 bill with the identification
number 123”

Intent Theory: If the specifically devised item is not in the testator’s
estate, if the beneficiary can show that the testator wanted the
beneficiary to have the value of the item or the replacement item,
then the beneficiary can recover that value/item

Example: “I give my daughter my personal residence located at 123
fake street”
Ademption
 Estate of Anton
 What type of theory of ademption was used by the court?
 What needed to be shown for the ademption to not occur?


(1) Had Capacity, (2) Testator Knew of Property Being Sold, (3)
Testator Did Not Change Estate Plan
What does this case show?

That in intent theory jurisdictions whether a gift is considered
adeemed is a very fact specific showing
Types of Gifts
 Probate Code Section 21117
 Specific Gift: “a transfer of specifically identifiable property”
 General Gift: “a transfer from the general assets of the
transferor that does not give specific property”
 Demonstrative Gift: “a general gift that specifies the fund or
property from which the transfer is primarily to be made”
 General Pecuniary Gift: “a transfer of property made in an
instrument that either is expressly stated as a fixed dollar
amount or is a dollar amount determinable by the provisions
of the instrument” (From Section 21118)
 Annuity: “a general pecuniary gift that is payable periodically.”
 Residuary Gift: “a transfer of property that remains after all
specific and general gifts have been satisfied”
California Ademption Statute
 Probate Code Section 21133
A recipient of an at-death transfer of a specific gift has a right to the
property specifically given, to the extent the property is owned by the
transferor at the time the gift takes effect in possession or enjoyment,
and all of the following: (a) Any balance of the purchase price (together
with any security agreement) owing from a purchaser to the transferor
at the time the gift takes effect in possession or enjoyment by reason of
sale of the property. (b) Any amount of an eminent domain award for
the taking of the property unpaid at the time the gift takes effect in
possession or enjoyment. (c) Any proceeds unpaid at the time the gift
takes effect in possession or enjoyment on fire or casualty insurance on
or other recovery for injury to the property. (d) Property owned by the
transferor at the time the gift takes effect in possession or enjoyment
and acquired as a result of foreclosure, or obtained in lieu of
foreclosure, of the security interest for a specifically given obligation.
California Gift Satisfaction
 Probate Code Section 21135
(a) Property given by a transferor during his or her lifetime to a person is treated as
a satisfaction of an at-death transfer to that person in whole or in part only if one of
the following conditions is satisfied: (1) The instrument provides for deduction of
the lifetime gift from the at-death transfer. (2) The transferor declares in a
contemporaneous writing that the gift is in satisfaction of the at-death transfer or
that its value is to be deducted from the value of the at-death transfer. (3) The
transferee acknowledges in writing that the gift is in satisfaction of the at-death
transfer or that its value is to be deducted from the value of the at-death transfer.
(4) The property given is the same property that is the subject of a specific gift to
that person. (b) Subject to subdivision (c), for the purpose of partial satisfaction,
property given during lifetime is valued as of the time the transferee came into
possession or enjoyment of the property or as of the time of death of the transferor,
whichever occurs first. (c) If the value of the gift is expressed in the
contemporaneous writing of the transferor, or in an acknowledgment of the
transferee made contemporaneously with the gift, that value is conclusive in the
division and distribution of the estate. (d) If the transferee fails to survive the
transferor, the gift is treated as a full or partial satisfaction of the gift, as the case
may be, in applying Sections 21110 and 21111 unless the transferor's
contemporaneous writing provides otherwise.
Abatement
 Probate Code Section 21401
Except as provided in Sections 21612 (omitted spouse)
and 21623 (omitted children) and in Division 10 (commencing
with Section 20100) (proration of taxes), shares of beneficiaries
abate as provided in this part for all purposes, including payment
of the debts, expenses, and charges specified in Section 11420,
satisfaction of gifts, and payment of expenses on specifically
devised property pursuant to Section 12002, and without any
priority as between real and personal property
Order of Abatement
 Probate Code Section 21402
(a) Shares of beneficiaries abate in the following order:
(1) Property not disposed of by the instrument.
(2) Residuary gifts.
(3) General gifts to persons other than the transferor's relatives.
(4) General gifts to the transferor's relatives.
(5) Specific gifts to persons other than the transferor's relatives.
(6) Specific gifts to the transferor's relatives.
(b) For purposes of this section, a “relative” of the transferor is a
person to whom property would pass from the transferor under
Section 6401 or 6402 (intestate succession) if the transferor died
intestate and there were no other person having priority.
Advancements
 Common Law: Any lifetime gift to a beneficiary was
considered a prepayment on the testamentary gift
unless evidence shows otherwise
 Modern Rule: Any lifetime gift to a beneficiary is not
considered a prepayment on the testamentary gift
unless evidence shows otherwise
Revocation of Wills
3 Types of Revocation:
1. Revocation By Writing
2. Revocation By Physical Act
3. Presumption Of Revocation
Revocation By Writing
 Probate Code Section 6120 (a)
A will or any part thereof is revoked by any of the following: (a) A
subsequent will which revokes the prior will or part expressly or
by inconsistency.
Revocation By Physical Act
 Probate Code Section 6120 (b)
A will or any part thereof is revoked by any of the following:
(b) Being burned, torn, canceled, obliterated, or destroyed, with
the intent and for the purpose of revoking it, by either (1) the
testator or (2) another person in the testator's presence and by
the testator's direction.
Revocation By Physical Act
 Harrison v. Bird


The destruction of one duplicate original is a revocation of all the
duplicate original wills
The court found that the physical destruction of the will did not
revoke it. Why?

Different result in California?
 Thompson v. Royall


Why wasn’t it considered revocation by writing?
Cancelling means mutilation of the writing itself


Any writing that does not touch the original writing is considered a
new separate writing, and must meet the formality requirements
These case again demonstrates the courts presumption that the will
is valid

As a result strict compliance of a revocation statute is needed for the
revoking act to be valid.
Presumption Of Revocation
 Probate Code Section 6124
If the testator's will was last in the testator's possession, the
testator was competent until death, and neither the will nor a
duplicate original of the will can be found after the testator's
death, it is presumed that the testator destroyed the will with
intent to revoke it. This presumption is a presumption affecting
the burden of producing evidence.
Presumption of Revocation
 Lauermann v. Superior Court
 What is a duplicate original?



Only a duplicate of the original that satisfies the same formalities of the
original will
In this case the duplicate was only a photocopy and not a duplicate original as
intended by the legislature, therefore the presumption takes effect
 What if it was a holographic will?
Footnote 8

“It is as well to note that the statute clarifies that the presumption is one
affecting only the burden of producing evidence rather than the burden of
proof. It may therefore be rebutted by evidence showing that it is ‘equally
probable’ that the will was destroyed inadvertently or without the intent to
revoke it.”
 Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416
 “[W]hen the party against whom such a presumption operates produces
some quantum of evidence casting doubt on the truth of the presumed
fact, the other party is no longer aided by the presumption. The
presumption disappears…”
Revival
 Revival
 Dependent Relative Revocation
Revival
 Probate Code Section 6123
(a) If a second will which, had it remained effective at death,
would have revoked the first will in whole or in part, is thereafter
revoked by acts under Section 6120 or 6121, the first will is
revoked in whole or in part unless it is evident from the
circumstances of the revocation of the second will or from the
testator's contemporary or subsequent declarations that the
testator intended the first will to take effect as executed. (b) If a
second will which, had it remained effective at death, would have
revoked the first will in whole or in part, is thereafter revoked by
a third will, the first will is revoked in whole or in part, except to
the extent it appears from the terms of the third will that the
testator intended the first will to take effect.
Dependent Relative Revocation
 LaCroix v. Senecal
 “Where the intention to revoke is conditional and where the
condition is not fulfilled, the revocation is not effective.”

What condition was not met in LaCroix?
 That the execution of a codicil which would be effective to
continue the same disposition of her residuary estate
 Estate of Alburn
 Which will is in effect: 1955 will, 1959 will, or no will?

Did the court find that Dependent Relative Revocation applied?
 Then why does the 1959 will is the proper one to probate?
Restrictions on Power of Disposition
 Right of Surviving Spouse to Community Property
 Right of Omitted Spouse
 Right of Omitted Child
 Homestead
 Family Allowance
Right of Surviving Spouse to Community
Property
 Community and quasi-community property is
property that is owned by spouses together
 Both spouses have equal claim to that property
 Therefore, one spouse cannot gift the entirety of
community property

Example: Heather and Evan buy a house together while
married, and only Heather’s name is on the deed. Heather dies
2 years later and leaves the entire house to Paul the pool boy.

Heather can only give Paul the pool boy her portion of the
community property. Therefore, Evan retains ½ of the house.
Right of Omitted Spouse
 Probate Code Section 21610
Except as provided in Section 21611, if a decedent fails to provide in a
testamentary instrument for the decedent's surviving spouse who
married the decedent after the execution of all of the decedent's
testamentary instruments, the omitted spouse shall receive a share in
the decedent's estate, consisting of the following property in said estate:
(a) The one-half of the community property that belongs to the
decedent under Section 100. (b) The one-half of the quasi-community
property that belongs to the decedent under Section 101. (c) A share of
the separate property of the decedent equal in value to that which the
spouse would have received if the decedent had died without having
executed a testamentary instrument, but in no event is the share to be
more than one-half the value of the separate property in the estate.
Right of Omitted Spouse
 Probate Code Section 21611
The spouse shall not receive a share of the estate under Section
21610 if any of the following is established: (a) The decedent's
failure to provide for the spouse in the decedent's testamentary
instruments was intentional and that intention appears from the
testamentary instruments. (b) The decedent provided for the
spouse by transfer outside of the estate passing by the decedent's
testamentary instruments and the intention that the transfer be
in lieu of a provision in said instruments is shown by statements
of the decedent or from the amount of the transfer or by other
evidence. (c) The spouse made a valid agreement waiving the
right to share in the decedent's estate.
Right of Omitted Spouse
 Probate Code Section 21612
(a) Except as provided in subdivision (b), in satisfying a share provided
by this chapter: (1) The share will first be taken from the decedent's
estate not disposed of by will or trust, if any. (2) If that is not sufficient,
so much as may be necessary to satisfy the share shall be taken from all
beneficiaries of decedent's testamentary instruments in proportion to
the value they may respectively receive. The proportion of each
beneficiary's share that may be taken pursuant to this subdivision shall
be determined based on values as of the date of the decedent's death.
(b) If the obvious intention of the decedent in relation to some specific
gift or devise or other provision of a testamentary instrument would be
defeated by the application of subdivision (a), the specific devise or gift
or provision may be exempted from the apportionment under
subdivision (a), and a different apportionment, consistent with the
intention of the decedent, may be adopted.
Right of Omitted Child
 Probate Code Section 21620
Except as provided in Section 21621, if a decedent fails to provide
in a testamentary instrument for a child of decedent born or
adopted after the execution of all of the decedent's testamentary
instruments, the omitted child shall receive a share in the
decedent' s estate equal in value to that which the child would
have received if the decedent had died without having executed
any testamentary instrument
Right of Omitted Child
 Probate Code Section 21621
A child shall not receive a share of the estate under Section
21620 if any of the following is established: (a) The decedent's
failure to provide for the child in the decedent's testamentary
instruments was intentional and that intention appears from the
testamentary instruments. (b) The decedent had one or more
children and devised or otherwise directed the disposition of
substantially all the estate to the other parent of the omitted
child. (c) The decedent provided for the child by transfer outside
of the estate passing by the decedent's testamentary instruments
and the intention that the transfer be in lieu of a provision in said
instruments is show by statements of the decedent or from the
amount of the transfer or by other evidence
Right of Omitted Child
 Estate of Mowry
 Adopted daughter from previous marriage was omitted from
holographic will
 Daughter doesn’t take under omitted child statute because she
was adopted before the last testamentary document was
executed
 Daughter has burden of proof to show that she was mistakenly
omitted
What does the court say about putting the burden of proof on the
proponent of the will?
 Why let the omitted child challenge the will at all?
 Same reason, intent of testator

Homestead and Family Allowance
 Homestead
 The court in its discretion may set aside a real property for the
use of the surviving spouse during their lifetime or for the
duration of a child remains in minority, or any other
restrictions of time or use the court deems proper
 Family Allowance
 The court in its discretion may provide a surviving spouse, a
minor child, or a dependent adult child with reasonable funds
necessary for the maintenance of that party during the estate
administration
Bars To Succession
 Felony Murder
 Divorce
 Disclaimer
 Elder Abuse
Felony Murder
 Probate Code Section 250
 A person who intentionally and feloniously kills the decedent
is not entitled to take under intestate or testate succession or
as a beneficiary of a trust.

Nor can they be an executor or trustee
Divorce

Probate Code Section 6122
(a) Unless the will expressly provides otherwise, if after executing a will the testator's
marriage is dissolved or annulled, the dissolution or annulment revokes all of the
following: (1) Any disposition or appointment of property made by the will to the former
spouse. (2) Any provision of the will conferring a general or special power of appointment
on the former spouse. (3) Any provision of the will nominating the former spouse as
executor, trustee, conservator, or guardian. (b) If any disposition or other provision of a
will is revoked solely by this section, it is revived by the testator's remarriage to the
former spouse. (c) In case of revocation by dissolution or annulment: (1) Property
prevented from passing to a former spouse because of the revocation passes as if the
former spouse failed to survive the testator. (2) Other provisions of the will conferring
some power or office on the former spouse shall be interpreted as if the former spouse
failed to survive the testator. (d) For purposes of this section, dissolution or annulment
means any dissolution or annulment which would exclude the spouse as a surviving
spouse within the meaning of Section 78. A decree of legal separation which does not
terminate the status of husband and wife is not a dissolution for purposes of this section.
(e) Except as provided in Section 6122.1, no change of circumstances other than as
described in this section revokes a will. (f) Subdivisions (a) to (d), inclusive, do not apply
to any case where the final judgment of dissolution or annulment of marriage occurs
before January 1, 1985. That case is governed by the law in effect prior to January 1, 1985.
Divorce
 Probate Code Section 6122.1
 (a) Unless the will expressly provides otherwise, if after executing a will
the testator's domestic partnership is terminated, the termination
revokes all of the following: (1) Any disposition or appointment of
property made by the will to the former domestic partner. (2) Any
provision of the will conferring a general or special power of
appointment on the former domestic partner. (3) Any provision of the
will nominating the former domestic partner as executor, trustee,
conservator, or guardian. (b) If any disposition or other provision of a
will is revoked solely by this section, it is revived by the testator
establishing another domestic partnership with the former domestic
partner. (c) In case of revocation by termination of a domestic
partnership: (1) Property prevented from passing to a former domestic
partner because of the revocation passes as if the former domestic
partner failed to survive the testator. (2) Other provisions of the will
conferring some power or office on the former domestic partner shall be
interpreted as if the former domestic partner failed to survive the
testator. (d) This section shall apply only to wills executed on or after
January 1, 2002.
Divorce
 Estate of Coleman
 In this case a pour over will was created that gave to the trust
The trustee of the trust was the former spouse of the decedent
 Court found trust was revoked prior to death and therefore trust
gift lapsed
 However, the will provided that if the trust gift lapsed, the
contingent beneficiary would be a new trust which had identical
provisions of the revoked trust

• Court held that in the end it does not matter what capacity the
former spouse is in, she cannot take under the Probate Code

What if the former spouse is also a business partner that the
decedent leaves property to?
Disclaimer
 When a beneficiary refuses to take the property
Elder Abuse
 Elder abuse includes physical abuse, neglect,
financial abuse, abandonment, isolation, abduction,
or other treatment with resulting physical harm or
pain or mental suffering.