Wills Short Review Outline

July 2011 1. Intent 2. Components of a Will 3. Formalities of Execution for Attested or Formal Wills 4. Formalities of Execution for Holographic Wills 5. Choice of Law 6. Codicils 7. Revocation by Physical Act 8. Revocation by Subsequent Written Instrument 9. Revocation by Operation of Law 10. Revocation by Change in Property Holdings (ademption) 11. Contracts (to make a will or devise, or to not make a will or devise) 12. Restrictions on Testamentary Dispositions 13. Intestate Succession 14. Distribution of the Estate who can take? 14. Distribution of the Estate who can take? 16. Will Substitutes

1. Intent
1. Capacity a. 4 elements: i. 18 years old ii. Testator (T) able to understand extent of her prop. iii. T must know the natural objects of her bounty (spouse, issue, parents, those whose interests are affected by the will). iv. T must know the nature of her act that shes making a will. b. Consequences of no capacity i. Entire will in invalid. Prop passes by intestate succession. ii. Exception: T had valid prior will that was purportedly revoked by a 2nd will (T didnt have capacity), then the 1st will be probated b/c if T didnt have capacity then the 2nd will could not have revoked 1st one. c. Test for capacity is same for making and revoking a will. d. Tip: Look for T who has conservator appointed. Look for T diagnosed w/ mental disorder. Must say b/c T was diagnosed w/ mental disorder [put particular element that is lacking]. 2. Insane delusion a. 4 elements: i. T had a false belief. ii. That false belief was the product of a sick mind. iii. 2 diff views for 3rd element: 1. CA: Must be no evid to support the belief, not even a scintilla. 2. A belief is delusional if no rational person would believe it (even if some factual basis for it). iv. Delusion must have affected Ts will. b. Consequences of no capacity i. Only the part of the will that is affected by delusion is invalid. Bad part drops into residuary clause (or if none then intestate succession). 3. Fraud a. Elements: i. A representation of material fact ii. Known to be false by the wrongdoer iii. For the purposes of inducing action or inaction, and

iv. In fact induces the action or inaction desired. b. Fraud in the execution i. Def: Someone forges Ts signature or T given doc to sign which is purportedly nontestamentary but it really. ii. Consequences: Entire will is invalid. Goes by intestate succession or prior valid will. c. Fraud in the inducement i. Def: The wrongdoers representations affect the content of Ts will. ii. Consequences: Only the part affected by the will is invalid. Ct has 3 options: 1. Go to residuary clause. 2. Go by intestate succession. 3. Constructive trust. d. Fraud in preventing T from revoking will i. Consequences: Constructive trust give to wrongdoer but make then give to intended ben. 4. Undue Influence a. Def: Ts free agency is subjugated. b. Established in 3 ways prima facie case, presumption, statutory. Discuss all 3. c. Prima facie case i. 5 elements: 1. Susceptible some weakness like physical, emotional, financial. 2. Opportunity. 3. Active participation the wrongful act that gets the gift. 4. Unnatural result not unnatural to prefer 1 kid over others. 5. Wrongdoer benefits financially watch for substantial indirect benefit. d. Presumption i. 4 elements: 1. Confidential relationship CA recognizes all incl whenever 1 person reas reposes trust in another (ie, 2 friends). 2. Active participation 3. Unnatural result 4. Wrongdoer benefits e. Statutory i. Rule: CA will generally invalidate transfer from T to certain classes of people a person who drafted the instrument, related by blood or marriage to drafter, cohabitant w/ drafter, EE of drafter, fiduciary relationship w/ transferor. ii. Exception: Transfer not invalidated if: 1. transferor is related to or cohabitates w/ drafter, or 2. is in domestic partnership w/ drafter, or 3. if instrument is reviewed by ind atty who counsels drafter. iii. Consequences: 1. Transfer is made as if the disqualified person predeceased the transferor w/out spouse or issue but only to the extent that the value of the transfer exceeds the intestate share. 2. The part that doesnt pass to wrongdoer will go by residue, intestacy, or constructive trust. f. Consequences: Only the part affected by the will is invalid. Ct has 3 options same as above. 5. Mistake a. 6 types: mistake in content, mistake in execution, mistake in inducement, mistake in description, mistake in validity of a subsequent testamentary instrument, mistake involving living children. b. Mistake in content i. The wrong ben is named or wrong gift is made. ii. Accidental omission: No remedy given. iii. Accidental addition: Remedy may be given. Ct may strike out name. c. Mistake in execution i. T signs will thinking it is something else doc is not probated b/c no T intent. ii. Reciprocal/mutual wills each has own will and leaves everything to each other but signed wrong one; ct may reform the will.

d. Mistake in inducement i. A particular gift is made or not made on the basis of Ts erroneous beliefs. ii. Rule: No relief given. iii. Exception: Relief given if both the mistake and what T wouldve done but for the mistake are on the face of the will. e. Mistake in description (ambiguity) i. No one or nothing fits the description or 2 or more people fit the description. ii. Consequences: Modern trend in CA is to allow parol evid for any kind of ambiguity. f. **Mistake in validity of a subsequent testamentary instrument (DRR) i. DRR: T revokes his will upon mistaken belief that another will is effective, and but for this mistake would not have revoked the will. ii. Applies to revocations by physical act and subsequent instrument. If this second disposition fails then the revocation of the first one is set aside and the original will remains in force. g. Mistake involving living children i. Rule: A child is pretermitted if born/adopted after all testamentary instruments are executed and not provided for in any testamentary instrument. So a child born/adopted before all testamentary instruments and not provided for is not pretermitted and takes nothing. ii. Exception: A child born/adopted before all testamentary instruments will be treated as pretermitted if the only reason child wasnt provided for is b/c T erroneously thought the child was death or non-existent.

2. Components of a Will
1. Integration a. Refers to what papers make up the will. b. 2 elements for papers to be integrated: i. Intent T must have intended the papers in q to be part of the will. ii. Presence The paper mustve been actually or physically present at time of execution. c. Proving integration: i. Establish a physical connection among all the pages. ii. If there is a logical connection. 2. **Incorporation by reference a. Theory is that a non-integrated writing is given testamentary effect and becomes part of the will. b. 4 elements: i. You need a doc or a writing. ii. The doc or writing must have been in existence when the will was executed. iii. The doc must be clearly identified in the will. iv. T must have intended to incorporate doc into the will. Ct will infer 4 if you establish 1-3. c. The doc doesnt have to be valid for what it purports to stand for (ie, deed, will). 3. **Facts of independent sig a. Who a ben is or what gift is given can be given meaning by facts of sig independent from Ts will. b. Even w/out the will, would this fact have existed? c. Fact or act can be a future or past fact or act. 4. Pour-over wills a. Ex: Jan 1 T executes trust. Jan 2 T executes will leaving estate to the trustee of ABC trust, to be administered pursuant to the terms of the trust. b. T may by will bequeath estate assets to an inter vivos trust provided the trust is identified in the will and its terms are set forth in a written instrument executed before or currently w/ the execution of Ts will. c. How to validate pour-over provisions: Discuss all 3. i. Incorporation by ref trust instrument is in existence when will was executed, clearly identified in the will, and from which is inferred that T intended to incorporate into will. ii. Facts of independent sig even w/out the will we have perfectly good inter vivos trust. iii. Uniform Testamentary Additions to Trusts Act (UTATA) so long as you have a valid trust in existence before or at time will was executed, pour-over provision is valid.

3. Formalities of Execution for Attested or Formal Wills

1. Formalities a. **4 elements for an attested will: i. The will must be in writing. ii. The will must be signed by either T, third person in Ts presence at Ts direction, conservator pursuant to ct order. iii. The signing must be done in the presence of 2 Ws, both present at the same time. If T previously signed alone then just has to acknowledge his signature in presence of the 2 Ws. iv. The Ws must understand that the instrument they sign is Ws will. b. Not reqs: i. Ws dont have to sign in the presence of each other. ii. Ws dont have to sign in presence of T (but do need one continuous transaction). iii. T doesnt have to declare this is my will. iv. T doesnt have to sign before the Ws, no order of signing. v. Neither T nor Ws have to sign at the end, anywhere is okay. c. Meaning of presence T must sign or acknowledge in the presence of 2 Ws. i. Sight presence: Ws see T sign. ii. Conscious presence: T must sign or acknowledge w/in Ws hearing. Ws must know what is being done. Signing by Ws and T constitutes 1 continuous transaction. 2. **Interested W prob a. Def: i. A W who is a ben under the will. ii. Also look for a W who receives no gift but a substantial indirect benefit. Ex: A father W whose son receives under will. Argue both ways. b. Consequences: i. Will is not invalid. ii. But unless there are at least 2 other disinterested Ws, a presumption arises that the W/ben secured the gift by wrongdoing. If they rebut presumption then no prob. But if they cant then theyll take an amt that doesnt exceed what they wouldve received by intestacy. c. Presumption of wrongdoing inapplicable if W/ben is taking only in a fiduciary capacity.

4. Formalities of Execution for Holographic Wills

1. Holographic will a. **2 elements i. Signed by T anywhere. ii. Material provisions (gifts made, ben names) in Ts own handwriting. 2. Testamentary intent a. A stmt of testamentary intent (this is my last will) need not be on face of the will in Ts handwriting. b. Can use extrinsic evid to determine Ts intent: i. if T signs and executes a writing that lists names of people and next to each name an asset. ii. if T writes a series of letters, could possibly be 1 will under integration. c. Ts intent can be part of a commercial printed will form. 3. Dates a. A date is not required on a holographic will. b. But lack of a date can create 2 probs inconsistent wills and capacity. c. Lack of dates and inconsistent wills i. If undated holograph is inconsistent w/ the provision of another will then the undated holograph is invalid to the extent of inconsistency unless holographs date is established to be after date of other one. ii. If 2 undated holographs and cant establish which came last then neither is probated to the extent of the inconsistencies. d. Lack of dates and capacity

i. If a holograph is undated and it is established T lacked testamentary capacity at any time during which the will mightve been executed, the holograph is invalid unless it is established that it was executed when T had testamentary capacity.

5. Choice of Law
1. Where is the will probated? a. Primary probate will take place at Ts domiciliary at time of death. b. Ancillary probate takes place wherever T owns real prop. 2. Can the will be probated? a. The will can be probated if it complies w/ the law of: i. the place where the will is to be probated, or ii. the place where the will was executed, or iii. the place of Ts domicile at the time of execution.

6. Codicils
1. Defined a. A codicil is a testamentary instrument that complies w/ the statute of wills which modifies, amends, or revokes a will. 2. Republication a. A codicil republishes a will so that the will is deemed to be reexecuted at the time of the codicil. b. Important for pour-over wills and incorporation by ref; pretermission. c. Applied flexibly to carry out Ts intent. 3. Invalid will prob a. Prob: You have invalid will then T executes 2nd doc which he labels codicil. The 1st doc cant be probated b/c it isnt a will. 2nd one cant be probated b/c a codicil is supposed to modify, amend, or revoke a will. b. Result: The codicil will be considered a will. The 1st doc can be incorporated by ref into the codicil turned will. So the whole thing is probated. 4. Cumulative v. substitutional a. Codicil is presumed to be cumulative but it is rebuttable. 5. Revocation of codicils a. If T has a valid will and later executes a valid codicil and later revokes the codicil then there is a rebuttable presumption that T intended to only revoke the codicil and not the will. b. On the other hand, if T later revokes the will, there is a rebuttable presumption that T intended to revoke the will and the codicil.

7. Revocation by Physical Act

1. Revocation by physical act a. **3 elements i. Will must be burned, torn, cancelled, destroyed, or obliterated. ii. T must have the simultaneous intent to revoke. iii. The act must be done by T, or by someone in Ts presence and at his direction. 2. Cancellations and interlineations a. Cancellation: crossing out or lining through w/ pen or pencil. b. Interlineation: writing in btwn the lines. c. Ex: Formal typed will stated $1,000 to Andy. T takes pen and crosses out the $1,000 and interlineates, writes just above the $1,000, $1,500. (T can even initial and date.) i. Gift is invalid as holograph b/c material provisions arent in Ts own handwriting. ii. The $1,000 gift has been revoked by physical act. iii. Andy takes nothing.

iv. But look to DRR to save the gift of at least $1,000. We can say revocation of $1,000 was conditional and dependent on the $1,500 being effective. d. You cant increase a co-bens gift by cancellation. If you cancel it will just go into the residue or by intestacy. 3. Duplicate wills a. Duplicate wills are not photocopies. b. If T or someone in Ts presence at his presence at Ts direction revokes by physical act one of the duplicate originals then the other duplicate original is also revoked. 4. Mutilated wills a. If a will is found in a mutilated condition at Ts death and when last seen it was in Ts possession, then it is presumed that T mutilated the will w/ the intent to revoke the will.

8. Revocation by Subsequent Written Instrument

1. Manner of revoking a. Express b. Implied Will 2 revokes Will 1 by implication if Will 2 totally disposes of Ts estate. 2. Revival a. Prob 1: T executes Will 1. T executes Will 2 which revokes Will 1. T revokes Will 2 by physical act. b. Result: i. CL: Will 1 is automatically revived. ii. CA: Will 1 is not automatically revived. Revived only if T manifests an intent to revive 1. Oral stmts made by T at time 2 was revoked are admissible. c. Prob 2: T executes Will 1. T executes Will 2 which revokes Will 1. T revokes 2 by codicil or Will 3. d. Result: i. CA: When revocation of 2 is by subsequent instrument, 1 is not revived unless it appears from the terms of codicil/Will 3 that T intended 1 to take effect. Extrinsic evid cant be used to prove Ts intent to revive 1.

9. Revocation by Operation of Law

1. **Omitted or Pretermitted Child a. Defined: Born or adopted after the testamentary instruments are executed and not provided for therein. b. Consequence: Child takes intestate share from Ts estate (incl revocable inter vivos trusts). Other gifts will have to be abated. c. 3 exceptions: If any exists then child will not take. i. Ts failure to provide for child appears on the face of the testamentary instrument. ii. T provided for the child outside the testamentary plan, w/ the intent it be in lieu of a provision in these instruments. iii. When testamentary plan was executed, T already had kids and gave substantially all of his estate to the parent of the omitted child. 2. Omitted Spouse a. Defined: A person who marries T after T executes all testamentary instruments and is not provided for therein. b. Consequences: Omitted spouse takes statutory share. Other gifts will have to be abated. i. CP. ii. Quasi-CP. iii. Intestate share of the SP, not to exceed . c. 3 exceptions: If any exists then spouse will not take. i. Ts failure to provide for child appears on the face of the testamentary instrument. ii. T provided for the spouse outside the testamentary plan. iii. If omitted spouse signed a waiver. d. Waiver i. Voluntary relinquishment of a known right, whether signed before or during marriage. ii. Any and all probate rights can be waived, incl not to take as omitted spouse.

iii. 3 elements: 1. Waiver must be in writing signed by waiving spouse before or during marriage, 2. Full disclosure by T of Ts finances, and 3. Independent counsel by waiving spouse. iv. If no counsel or disclosure, waiver is still enforceable if fair or if waiving spouse had or should have had knowledge of Ts finances. v. Waiver will not be enforced if unconscionable. 3. Final dissolution of marriage a. Revocation of gift if there is an annulment or final dissolution of marriage. b. Legal separation doesnt count. c. Gift reinstated if will is unchanged and ex-spouses re-marry each other. 4. Termination of domestic partnership a. Same as above applies to wills executed on or after 1/1/2002.

10. Revocation by Change in Property Holdings (ademption)

1. Classification a. Specific devise: Gift of a particular item which is distinct from all others in Ts estate. b. General devise: A gift of general economic benefit, payable out of general assets of estate. c. Demonstrative devise: A gift from a particular fund (form my B&A account), but if it isnt enough then executor can take from general prop. 2. Ademption by extinction a. Applies only to specific gifts. b. CL test: When a specific gift fails b/c not owned by T at his death then adeemed by extinction and bens take nothing. c. CA test: Intent is important in determining whether gift is specific or general and in determining whether T intended gift to fail. d. No ademption by extinction in CA for: T did not intend gift to fail. i. Securities changing form. ii. Conservator sells off assets. iii. Eminent domain award. iv. Casualty award. v. Installment sale. vi. In all other situations try to classify gift as general and if that doesnt work then try to trace into separate bank account. 3. Ademption by satisfaction a. Typically applies only to general and demonstrative gifts. b. T gives ben an inter vivos down payment on devise. c. Can establish a satisfaction in 4 alternative ways: i. Will or other testamentary instrument provides for deduction. ii. T declares in a contemporaneous writing gift is a satisfaction. iii. Ben acknowledges in a writing at any time the satisfaction. iv. The prop given in satisfaction is the same prop that is the subject of a specific gift to ben. d. If ben receives a satisfaction but predeceases T: i. e. How to value the satisfaction if not made in cash: i. 4. Advancements a. An inter vivos down payment made by an intestate to an heir apparent. b. If the heir apparent receives an advancement but predeceases intestate then the advancement isnt charged against the heir apparents issue unless the advancement provides otherwise. c. How to value the advancement if not made in cash. i. If the value of the advancement is expressed in the contemporaneous writing of the intestate or in a contemporaneous writing of the heir apparent, then the value is conclusive. ii. In all other cases, the prop is valued at the FMV at time the transferee came into possession of the prop. If totally diff values btwn ben and intestate then cancelled out.

11. Contracts (to make a will or devise, or to not make a will or devise)
1. Rule: a. Contracts to make, not to make, or not to revoke, wills are controlled by k law, not the law of wills. 2. Reqs for a k not to revoke (or a k to make a will) a. 5 alternative ways: i. Provisions in the will or other instrument state the material provisions. ii. Express reference in the will to a k. iii. A writing signed by decedent evidencing a k. iv. Clear and convincing evid of an agmt btwn the decedent and promisee that is enforceable in equity. Estoppel. v. Clear and convincing evid of an agmt btwn decedent and a 3rd person for the benefit of the claimant that is enforceable in equity. Estoppel. 3. When the cause of action accrues a. Cause of action accrues only when decedent/T dies. 4. Joint and mutual wills a. Definition i. Joint will: the will of 2 or more people on 1 document. ii. Mutual will: separate wills of 2 or more people which are reciprocal. iii. Joint and mutual wills: reciprocal provisions on one instrument. b. Rule: i. The execution of a join or mutual will or a joint and mutual will does not create a presumption of a k to revoke or make a will. ii. But it may be evid of a k, in conjunction w/ other factors. 5. Remedy available to promisee a. Damages. b. Specific perf require executor to comply w/ terms of k. c. Constructive trust.

12. Restrictions on Testamentary Dispositions

1. Definitions a. Community Prop i. Defined by way of exclusion. ii. All personal prop wherever situated and all real prop situated in CA acquired during marriage while domiciled in CA that is not SP. b. Separate Prop i. Prop that is acquired before marriage, and during marriage by gift, bequest, devise, and descent, together w/ rents, issues, and profits thereof. c. Quasi-Community Prop i. All personal prop wherever situated, and all real prop in CA acquired by decedent while domiciled elsewhere that would have been CP if the decedent had been domiciled in CA at the time of its acquisition. ii. If no death or divorced, treated as acquiring spouses SP. 2. Spousal Protection a. Protection given to surviving spouse based on our CP system: i. Protection re CP: Ts will can dispose of only of the CP. Surviving spouse owns other at Ts death. ii. Protection re quasi-CP: T (acquiring spouse) can dispose of only of the quasi-CP by will. Surviving spouse owns other at Ts death. iii. Widows election 1. Arises when T attempts to dispose of more than the CP or the QCP. 2. Widow can accept the gift given in Ts will OR widow can renounce all benefits given in the will and confirm her rights to CP and QCP. iv. Illusory transfers of QCP and the widows election:

1. Rule: An inter vivos transfer by decedent (acquiring spouse) of the QCP to a 3rd person w/out consideration is allowed. B/c the surviving spouse (non-acquiring spouse) has a mere expectancy in the QCP and not a prop interest. 2. Exception: The transfer will not be allowed when the transfer of the QCP is deemed illusory and the SS invokes the widows election. It is illusory when the decedent (acquiring spouse) retains some interest or control over the prop. Effectively a fraud on the survivor. 3. Unworthy heirs or bens a. Killers i. Rule: Certain killers cannot take any benefits by will or intestacy those who feloniously and intentionally kills decedent. ii. Proof needed: conviction is conclusive or in all other cases, probate ct will determine guilt by a preponderance of the evid. iii. Consequences of finding killing was felonious and intentional: Killer is deemed to have predeceased decedent and anti-lapse statute does not apply. b. Abusers i. Rule: One who commits elder abuse against one who could not manage his affairs cannot take from the decedent/V by will or intestacy if the abuse is proven by clear and convincing evid. ii. Consequences: The abuser is deemed to have predeceased the decedent/V.

13. Intestate Succession

1. Surviving Spouse a. Inherits decedents CP and QCP so total of 100% of each. b. Separate prop: i. If decedent leaves no issue, parents, siblings, or issue of a deceased sibling, then all to SS. ii. If decedent survived by 1 kid, or issue of predeceased kid, then to SS and to kid or kids issue. iii. If decedent survived by 2 or more kids, or issue of predeceased kid, then 1/3 to SS and 2/3 to the kids or their issue. iv. If decedent is survived by on issue, but leaves parent or their issue, then to parent or their issue, to SS. 2. Surviving Domestic Partner a. Same as above applies to decedents dying on or after 1/1/2003. 3. All Others Intestate leaves no SS or domestic partner a. Intestate scheme i. **Issue. ii. Parents iii. Issue of parents have never tested beyond this. iv. Grandparent, issue of grandparents, issue of a predeceased spouse, next of kin, parents of a predeceased spouse, issue of a parents predeceased spouse, escheat. b. Per capita / Per stirpes Whenever issue take, they take by Section 240. i. Those of the same degree take per capita, or equally. ii. If intestate left kids and issue of predeceased kids, you make your distribution at the 1st level someone is living. That person(s) takes per capita. You also allocate a share to deceased members of that generation who left issue. Those issue take by right of representation, or per stirpes. c. If will or trust calls for distribution per stirpes or by right of rep we make a diff distribution. i. You make the distribution at the 1st general or 1st level, even if everyone is dead, so long as they left issue. 4. Adopted Children a. *Adopted child is always treated as a natural child of adopting parent. b. For natural parent, adoption severs the relationship. i. Exception: Relationship is not severed if natural parent and adopted kid lived together as parent and child or the adoption was by a spouse of either natural parent or after the death of either natural parent.

Stepkids or foster kids i. Child is treated as having been adopted if 3 elements satisfied: 1. The relationship began during the childs minority. 2. It continued throughout the parties lifetimes, and 3. It is established by CCE that the stepparent or foster parent would have adopted but for a legal barrier. d. Equitable adoption arises when the parties hold themselves out as parent and child. 5. Non-marital Children a. Marital status of parents irrelevant. b. Key is whether a parent-child relationship existed. 6. Half-bloods a. Relatives who have only 1 common parent, not 2 (half-siblings). b. Relatives of the half-blood inherit the same as the whole blood.
c.

14. Distribution of the Estate who can take?

1. Posthumous Children a. Def: A child conceived during the lifetime of intestate or T, but born after intestate or Ts death. b. Rule: Posthumous kids are deemed heirs of the intestate and bens of Ts will. 2. **Lapse and Anti-Lapse a. Ben must survive T in order to take a devise dead people do not take. b. Applies to wills and revocable trusts. c. Lapse Rule: i. If the ben does not survive the T, the bens gift lapses. If the gift lapses, unless a contrary intent is expressed in the will, the gift falls into the residue if already in residue then goes to other coresidue devisees; otherwise intestacy. d. Anti-Lapse Statute i. If the predeceased ben is kindred of T or of Ts spouse or former spouse, and the ben leaves issue, the issue will step into the shoes of the predeceased ben. 3. Simultaneous Death a. Rule: If devolution of prop is dependent on one person surviving another, and it cant be determined by CCE who survived whom, then it is deemed the one person did not survive the other. b. 5 situations: i. T and ben: If you cant tell by CCE then lapse or maybe anti-lapse. ii. A and B, joint tenants w/ right of survivorship: You sever the joint tenancy. each. iii. H and W have wills and own CP, QCP: We sever CP and QCP. each. iv. Life insurance policy and insured and ben die: If you cant tell by CCE then deemed that ben didnt survive. If no alternative ben then goes back to insureds estate. v. Intestate and heir: 120 hr rule For any heir to take the heir must survive the intestate by 120 hrs. If you cant tell by CCE then deemed heir didnt survive intestate.

15. Distribution of the Estate what does ben take?

1. After acquired prop: A will passes all prop the T owned at death, incl after acquired prop (prop acquired after will was executed). 2. Increase during Ts lifetime: Stock dividends paid during Ts lifetime go to ben if owned by T at Ts death. 3. Increase after Ts death and during probate a. Specific devises all increase goes to ben (stock dividends, stock splits, rents, cash dividends). b. General devises dont receive any increase. 4. Abatement a. Defined: The process by which certain gifts are decreased. b. When abatement arises: i. To pay for the last debts of the decedent. ii. To pay the share for the omitted child or spouse. c. Abatement for debts:

10

i. In the absence of directions in the will, abate as follows: 1. Intestate prop. 2. Residuary gifts (no intestate prop if there is valid residue). 3. General gifts to persons other than Ts relatives. 4. General gifts to Ts relatives. 5. Specific gifts to persons other than Ts relatives. 6. Specific gifts to Ts relatives. ii. Prop abates w/in a class pro rata, proportional to the value of the gift. iii. Demonstrative gifts are treated as specific gifts to the extent they are satisfied out of the fund specified in the gift, and as general gifts to the extent they are satisfied out of prop other than the fund or prop specified in the gift. d. Abatement for omitted child or spouse for Ts dying before 1998 i. Order: 1. Intestate prop. 2. All other devisees abate pro rata in proportion to the value of the gift. No distinction btwn specific or general gifts. ii. Exception for specific gifts: A ct can exempt a specific gift if abating it would defeat obvious intent of T.

Abatement for omitted child or spouse for Ts dying after 1998 i. Order: 1. Prop not passing by will or revocable trust. 2. Abate from all bens of Ts will and trust pro rata. ii. Exception for specific gifts: same as above. 5. Exoneration a. Defined: The debt is extinguished. b. CL view: If T devised specific gift subject to an encumbrance for which T was personally liable, the executor was required to automatically pay off the debt before passing the prop to the ben. c. CA view: No automatic exoneration. Devisee takes prop subject to the encumbrance. Unless Ts will states specific gift is to be exonerated.
e.

16. Will Substitutes

1. Gift Causa Mortis a. Def: A gift made in contemplation of imminent death. Can only give personal prop. b. Donor must take delivery i. 3 types: 1. Actual (manual) delivery 2. Symbolic delivery something representative of the corpus given to donee. 3. Constructive delivery a. CL view: Donor gives donee a key which unlocks a box or room where the corpus thats too big is located. b. Modern view: Whenever donor has done everything possible to effectuate a delivery and there is no issue of fraud or mistake. ii. If donor survives the peril, the gift is revoked by operation of law. 2. Totten Trusts see trusts.

11