* Wills *

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1.  ** Bad Intent 

   1. Testamentary Capacity

      1. At the time of the execution of the will, Testator (T) (i.e., a person who has made the will) must:

         1. be at least 18 years of age;

         2. be able to understand the extent of his or her property;

         3. know the natural objects of his or her bounty (spouse, issue, parents, etc.); and

         4. know the nature of his or her act (i.e., understand that he or she is executing a will) ** 

      2. Consequences of not meeting the Testamentary Capacity 

         1. The entire will is invalid 

         2. The property will pass by intestate succession (i.e., when a person dies without having a valid will in place, his or her property will pass without having a will. This is called an intestate succession. Additionally, intestacy is the state of passing away without a will. If a person dies without a will he or she is said to have 'died intestate'. The estate of the deceased person goes through probate court. Typically the takers are relatives of the deceased who survived the deceased) 

            1. Exception - If the T had a valid prior will that was purportedly revoked by the second will (the one T did not have capacity for), the first will be probated (i.e., proving that the will exists), because if T did not have capacity, the second will could not have revoked the first one ** 

   2. Insane Delusion

      1. At the time of the execution of the will, T had:​

         1. a false belief;

         2. that was a product of a sick mind;

         3. there is no evidence to support the belief; and

         4. the delusion affected the will written by T

      2. Consequences of Insane Delusion

         1. ​Part of the will that was affected by the delusion is invalid

         2. The property will pass to the residuary devisee (i.e., the person who takes all the property that remains in the estate after all debts are paid and gifts and bequests are satisfied), or if the residue itself was infected by the delusion, it will pass by intestate succession **

   3. Fraud ​

      1. ​Definition: Representation of a material fact known to be false by the wrongdoer, for the purpose of inducing action/inaction, and actually does induce action/inaction 

      2. Types of Fraud

         1. Fraud in the execution

            1. A person forges the signature of the T or T signs the will thinking it is not a will

            2. Consequences

               1. The entire will is invalid. The property passes by intestate succession unless there is a prior will that was validly executed ** 

         2. Fraud in inducement

            1. The representation of the wrongdoer affects the contents of the will

            2. Consequences

               1. The part of the will that is affected by the fraud is only invalid. As to that part, the court has three options:

                  1. Give the property to the residuary devisees, if any; or

                  2. If there is no residue, to the heirs at law by intestate succession; or

                  3. Make the heirs or devisees a constructive trustee (i.e., a person who receives a constructive trust. A constructive trust is a court order where the person who would otherwise be unjustly enriched to transfer the property to the party who is intended to receive) **

         3. Fraud in preventing testator from revoking

            1. Because of the fraudulent statement, T decides not to revoke

            2. Consequences

               1. The will will not be probated, and the property passes by intestate succession, or make the heirs or devisees a constructive trustee

   4. Undue Influence  

      1. Types of Undue Influence

         1. Prima Facie Cases 

            1. In order for the conduct of Undue Influence to be under Prima Facie case, below four elements must be met

               1. Susceptibility - T has a weakness such that he or she is able to have his or her free will subjugated

               2. Access - Wrongdoer has access to the T

               3. Active Participation - In order to receive the gift, use force, threat of force, or blackmail

               4. Unnatural Result - Wrongdoer taking the devise is unexpected

            2. Consequences **

               1. The part of the will only affected by the undue influence is invalid

               2. The property will be conveyed to the residuary devisees, if any; or If there is no residue, to the heirs at law by intestate succession; or make the heirs or devisees a constructive trustee

         2. Presumption

            1. In order for the conduct to Undue Influence to be under Presumption, below three elements must be met

               1. Confidential Relationship exits between the T and the wrongdoer (e.g., Trustee/Beneficiary, Attorney/Client, Doctor/Patient, Guardian/Ward, Clergy/Penitent)

               2. Active Participation (see above)​

               3. Unnatural Result (see above) 

            2. Consequences (same as Prima Facie Cases above) **

         3. Statutory Undue Influence 

            1. California statute presumes that a provision of any instrument (i.e., formally executed written document) making a donative transfer to certain persons is the product of undue influence. The certain persons are: 

               1. A person who drafted or transcribed the instrument, 

               2. A person who is related to, married to, or cohabitates with or is an employee of the drafter, or 

               3. A person who is in a fiduciary relationship with the T

               4. Partner of a law firm in which the drafter has an ownership interest in the instrument **

            2. The above rules do not apply if:

               1. The T is related to, married to, or co-habitats with the drafter, or

               2. If the instrument is reviewed by an independent lawyer who counsels T 

            3. Consequences

               1. The person does not take the gift, but only to the extent that the gift exceeds the intestate succession share of the person

               2. As to the portion that does not pass to the wrongdoer, it passes to the residuary devisee if any, or by intestate succession, or via a constructive trust 

   5. Mistake 

      1. Mistake in Content

         1. Wrong beneficiary is named in the will, the wrong gift is made in the will, the names are left out of the will, or the gifts are left out of the will **

            1. Consequence - Courts will not rewrite wills, but possible relief under DRR (i.e., Dependent Relevant Revocation (DRR - known as "Ineffective Revocation") is a doctrine which states that if a T revokes a former will with the intention to immediately create a new will, but the new will is either not made or fails, the T is presumed to have preferred to apply the former will again rather than to have the gift distributed by intestate succession. This will be explained in details later)

         2. Names or gifts accidentally added  

            1. Consequence - Court may strike the additional names or gifts added, because the court will not rewrite wills, just excise the parts

      2. Mistake in Execution 

         1. T signs the wrong document  

            1. T mistakenly signs his or her will believing it is a non-testamentary instrument

               1. Consequence - The will is not probated because T did not intend the document to be a will **

            2. Reciprocal wills or Mutual wills

               1. When you have 2 testators that each leave everything to one another and they accidentally signs on another's will

                  1. Consequence - The court may reform the wills in this unique situation, especially if the Ts are husband and wife or domestic partners because it is equitable

      3. Mistake in Inducement 

         1. A particular gift is made or not made on the basis of erroneous belief by the T (e.g., T believes X is dead when X is actually not, otherwise T would have left the gift)

            1. Consequence - No relief is given, unless both (i) the mistake and (ii) what T would have done but for the mistake appear on the face of the will **

      4. Mistake in Description

         1. No one or nothing fits the description, or two or more persons or things fit the description when it has to fit one person ​

            1. Latent Ambiguity: There is no problem on the face of the will 

               1. ​Consequence - In order to prove that there is no ambiguity, the party may introduce parol evidence (i.e., parties to a case may introduce into court evidence of a prior or contemporaneous agreement in order to modify, explain, or supplement the problem at issue) twice, once to establish the ambiguity and then again to determine the intent of the T **

            2. ​Patent Ambiguity: The ambiguity is apparent on the face of the will 

               1. Consequence - Traditionally there is no remedy, yet these days it allows the Consequence of the Latent Ambiguity above 

      5. ​Mistake in Validity of a Subsequent Testamentary Instrument ( = DRR)

         1. Dependent Relative Revocation (DRR)

            1. Definition

               1. if T revokes his or her first will, or a portion thereof, 

               2. in the "mistaken belief" that a substantially identical second will or codicil (i.e., an addition or a supplement that explains, modifies, or revokes a will) effectuates his or her intent,

               3. then, by operation of law, 

               4. the revocation of the first will be deemed ineffective if the T would not have revoked the substantially similar prior will had he or she known the truth that the second will or codicil was ineffective ** 

                  1. Example) T executes Will 1, T then executes Will 2 and revokes Will 1 thinking Will 2 effectuates his or her intent, yet T is mistaken because Will 2 is in fact invalid or fails to effectuate his or her intent. Here, the revocation of Will 1 by T will be deemed ineffective because T would not have revoked Will 1 if T knew Will 2 was ineffective  

                     1. Note: Generally, under the DRR cases, the first will and the second will must be very alike, in order for the T would prefer the first will to be probated instead of it to be passed by intestate succession

      6. Mistake involving Spouse & Children 

         1. Issue: This is where we determine whether family members who have been left out of wills or trusts can still recover to prevent them from being destitute **

         2. Omitted Spouse 

            1. Definition: Spouses who are left out of the will or trust of his or her partner because he or she married the spouse after the spouse created the will or trust 

            2. Consequence: As to the community property (see Community Property), the deceased spouse gets half and the other spouse gets half; and as to the separate property (see Community Property), the omitted spouse has the right to claim one-half of the portion of the separate property of the decedent the omitted spouse would have received had the decedent died intestate (i.e., a person who has died without having made a will)

         3. Pretermitted Children 

            1. Definition: A child is pretermitted if born or adopted after all testamentary instruments (e.g., will, codicil, trust) are executed and not provided for in any testamentary instrument

               1. Note that if the decedent has children they do not know about (i.e., believed to be dead or did not know he or she was born), these unknown children are deemed to be pretermitted even if they are alive at the time of execution of the will **

            2. Consequence: In this case the pretermitted child will take the intestate share (i.e., the share that has been given by the probate court because the deceased has died without a will of the T). Generally, intestate share will be an equal share split at the first level of inheritance 

               1. Exception: A pretermitted child will not take the intestate share if:

                  1. there was an explicit intent of exclusion of the pretermitted child by the T,

                  2. sufficient non-probate asset (i.e., property that won't need to go through the probate process after a person dies and will instead pass directly to the heirs) transfer was already made, or

                  3. all property was substantially granted to the parent of the pretermitted child

            3. Non-Pretermitted Child: A child born or adopted before all testamentary instruments are executed and not provided for in any testamentary instrument is not pretermitted. In this case, the child can be disinherited, for the T is not required to leave anything 

            4. Termination of Pretermitted Child Status: Republication of a will by a codicil without mentioning the pretermitted child can destroy the pretermitted status of a child and can treat him or her as being intentionally excluded from the will by the T **

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  2. Formalities of the Will 

1. Definition:  In order for a will to be valid, testamentary capacity (see above, and need to look at whether the T has insane delusion), (ii) testamentary intent (i.e., need to look at the material provisions and whether the T had appointed executory, and need to see whether the T has made the will under fraud, undue influence, mistake), and (iii) formalities must be met 

2. Types of Will

   1. Attested Will 

      1. Definition: A will that was attested by a witness

      2. General Elements:

         1. it must be in writing,

         2. signed by the T; or a third person appointed by the T if T is incapacitated in the presence of T and direction by the T; or a conservator (i.e., guardian) appointed by the court  

         3. witnessed by two witnesses as to the signing of T or acknowledgement of signature by T while T is alive 

      3. Substantial Compliance

         1. If a will was not executed in compliance with the requirements above, the will is invalid, unless the proponent (i.e., supporter) of the will can establish by clear and convincing evidence (i.e., (i.e., the evidence presented by a party during the trial must be highly and substantially more probable to be true than not) that at the time the T signed the will, the T intended the will to constitute as his or her will **

      4. Witness

         1. Requirements

            1. ​A witness can sign anywhere in the will, and the witness does not have to sign in front of the T or presence of each other yet must sign prior to the death of T

               1. As to CC, CA statue is ambiguous as to whether the T must sign before witnesses. If no fraud or mistake, it is said to be deemed valid

            2. Interested Witnesses

               1. Definition: A witness who is a beneficiary under the will (“Witness-Beneficiary") 

                  1. Note that, witness-beneficiary is not facially invalid just because the will was signed by the interested witness unless a presumption arises as below 

               2. Presumption: Unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing (i.e., duress, fraud, undue influence) 

                  1. If the witness-beneficiary cannot rebut the presumption of the wrongdoing, he or she can take only an amount that does not exceed his or her intestate share (i.e., a share under a person asset who has died without having made a will)

               3. Fiduciary Capacity: Presumption of wrongdoing is inapplicable if witness-beneficiary is taking only in a fiduciary capacity (e.g., the witness-beneficiary is a trustee for a child) **

   2. Conditional Will

      1. Definition: The validity is made conditional by his or her own terms

         1. Example) T states "this is my will if I pass away in an island during my vacation"

            1. The will is to be probated only if the condition is satisfied

            2. Conditional wills can be a formal will (i.e., an attested will, which is a will that has a witness that signs as s witness present), or a holographic will (i.e., a written and testator-signed document as an alternative to a will produced by a lawyer) **

   3. Holographic Will

      1. Definition: A will that is written and testator-signed document as an alternative to a will produced by a lawyer

      2. General Elements:

         1. it must be signed by the testator,

         2. material provisions (e.g., what kind of gift is made, the beneficiary names) must be in the writing of the testator 

            1. Note that unlike the attested will (see above), no witnesses are needed **

      3. Testamentary Intent 

         1. It is important that the the writing of the testator shows his or her intent in his or her writing to prove that the writing is his or her will 

            1. Note that if the will was written during any time of incapacity of the testator, the will is invalid

      4. Date of the Holographic Will

         1. Rule: Generally, a date is not required in holographic wills. Yet, the lack of date does create issues

            1. If an undated holograph will is inconsistent with the provisions of another will, the undated holograph will is invalid to the extent of inconsistency, unless the the date of the undated holograph is established to be after the date of execution of the other will

            2. If there are two undated holographic wills, and they are unable to establish dates, neither is probated to the extent of the inconsistency **

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

               1. Note that California allows extrinsic evidence in court to determine the intent of the testator if it is needed to determine (i) whether a document constitutes a will, or (ii) the meaning of the will if the meaning is unclear 

3. Codicil

   1. Definition: Testamentary instrument (i.e., a document by which a person directs his or her estate to be distributed upon his or her death) executed in compliance with the CA Probate Code, which revokes, amends or modifiesa will (i.e. the will must be a valid attested will or a holographic will)

      1. Note that the codicil must be executed with the same formalities of the will

   2. Republication: A codicil republishes a will. This means that the will is valid from the date the codicil is executed 

   3. Revocation

      1. If T executes a will, then executes a codicil, and subsequently revokes the codicil, there is a rebuttable presumption that T intended to revoke only his codicil

      2. If T executes a will, then executes a codicil, and subsequently revokes the will, there is a rebuttable presumption that T intended to revoke the will and the codicil **

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  3. Construction of the Will

1. Definition: If there is ambiguities in a will while constructing the will, the court will consider extrinsic evidence clarifying any ambiguities through below four 
   1. Integration

      1. Rule: Integration refers to which papers are the actual will

         1. There are two ways to know which papers are the actual will:

            1. the T must have intended for the papers to be part of the will, and 

            2. the papers must have been actually physically present at the time of the execution

         2. There are two ways to prove the papers are the actual will:

            1. when there is a physical connection among the pages (e.g., the papers are stapled together)

            2. when there is a logical connection among the pages (e.g., the last word on page one flows into page two) **

   2. Incorporation by Reference

      1. Rule: The act of including a document or a writing within another document (i.e., will) by stating the document or the writing in the another document (i.e., will)

      2. Elements:

         1. a document or a writing exists;

         2. and the document or writing exists when the will was executed;

         3. the document or writing must be clearly identified in the will; and 

         4. the T must have Intended to incorporate the document or writing into the will **

   3. Acts of Independent Legal Significance

      1. Definition

         1. The T can change the character of his or her property without changing the will. Additionally, it permits a T to change the provisions of the will without having to execute a codicil (i.e., an addition or supplement that explains, modifies, or revokes a will). These changes can be done, as long as the act referenced in the will, whether the act was in the past or will be in the future, has its significance independent of its effect upon the property of the T (i.e., the act has a separate significance from the will itself) 

      2. Example) 

         1. The T leaves, “all my asset to the people who are working for me at my time of death”. At the time of the will execution, H, P and X are working for T. At the death of the T, T fired P and kept H and X. And later hired L. Here, firing P and newly hiring L are entirely independent from the will itself (i.e., a person would not fire or hire people based on who should take in his or her will). Thus, P will not receive anything (i.e., because he or she no longer works for T), but L will (because he or she works for T despite the fact that he or she was hired after the will was created)

         2. The T leaves "I leave my treasure with an inscription to the person whose name I write on the tag attached to it." Later T writes P as the name on the tag. This act does not have independent significance because writing the name P on the tag has no significance except as a testamentary act (i.e., identifying who should take the treasure) **

   4. Pour-Over Will

      1. Definition: A legal document that ensures the remaining assets of a person will automatically transfer to a previously established trust upon his or her death

         1. Note that the will is used when the grantor of a trust (i.e., the person who created trust) neglects to transfer all his or her property into the trust through the years, and has no other will to determine which beneficiaries should receive which property that is at issue

      2. Rule

         1. Any asset that have not been determined who gets what will be included in the trust at the death of the grantor

         2. The pour-over will must be validated under (a) incorporation by reference (see above) (i.e., by identifying the previously existing trust which the property will be poured into), or under (b) Acts of Independent Legal Significance (see above) (i.e., by referring to a certain act that has significance apart from probate assets)

            1. Note that as long as a person has a valid trust, which was executed before or concurrently with the execution of the will by the T, the pour-over will is valid under Uniform Testamentary Additions to Trust Act (i.e., the Act explicitly deals with the provision in pour-over will to evaluate whether the will is valid or not) **

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  4. Revocation of the Will

1. Types of Revocation of a Will

   1. Revocation by physical act

      1. Definition: The will must be burned, torn, cancelled, destroyed or erased by the T or by another person in the presence of the T and at the direction by the T

         1. The act and the intent of the T must be coincide **

            1. Cancellation is usually done by crossing out or lining through the will 

               1. Note that the T cannot increase a co-beneficiary gift by cancellation

               2. Example) T states he or she will leave his or her treasure to L & H. T subsequently crosses out H. L still only gets half of the treasure, and other half goes to residuary devisee (i.e., the person who takes all the property that remains in the estate after all debts are paid and gifts and bequests are satisfied) or by intestacy (i.e., Intestacy is the state of passing away without a will. If a person dies without a will he or she is considered to have 'died intestate'. The estate of the deceased person goes through probate court. Typically the takers are relatives of the deceased who survived the deceased person)

            2. Interlineation is usually done by writing between the lines

               1. Note that a written addition to a typed will is qualified as revocation **

      2. Duplicate Wills

         1. If T, or a person in the presence of T and at the direction by T, revokes by physical act of the initial will, then the other duplicate will is revoked as a matter of law as well

      3. Disfigured Wills

         1. If a will is found in a disfigured (i.e. cut and damaged) condition at the death of the T, and when the disfigured will was last seen in the possession of the T, then there is a rebuttable presumption that T himself or herself disfigured the will with the intent to revoke the will

   2. Revocation by subsequent written instrument 

      1. Definition: A will could be revoked by a subsequent will either expressly or impliedly **

         1. Express written instrument: Will I can be expressly revoked by Will II in writing 

         2. Implied written instrument: Will I can be revoked by Will II impliedly as well, if Will II disposes of the entire estate of the T, which leaves Will I worthless  **

            1. ​Note that the subsequent written instrument does not revive the will automatically, unless the T clearly expresses his or her intent to revive the will

            2. Note that unless will expressly provides otherwise, regardless of the subsequent written instrument, divorce revokes the will. However, if the communities divorce and get remarried, the initial Will will be revived **

​

  5. Intestate Succession

1. Definition of Intestate Succession: ​When a person dies without a valid will, his or her estate passes to heirs or certain classes of family members as prescribed in individual state laws. The purpose of intestate succession statutes is to distribute the property of the decedent in a reasonable way. Each state has its respective law that determines how the property will be distributed

2. Distribution under Intestate Succession 

   1. Community Property & Quasi Community Property (see Community Property) of the deceased 

      1. The distribution as to the community property & quasi community property of the deceased 

         1. The surviving spouse/domestic partner will inherit the one half share of the community property & quasi community property of the decedent **

   2. Separate Property of the deceased 

      1. The distribution as to the separate property of the deceased is according to the follows:

         1. if the deceased had no surviving issue (i.e., children, grandchildren, great-grandchildren), parents, siblings; all separate property leads to the surviving community 

         2. if the deceased is survived by one child, or parents, issue of parents, siblings; one half of separate property leads to the surviving community, and other half of the separate property to one child or parents, issue of parents, siblings of the deceased 

         3. if the deceased is survived by beyond one child or issue, one third of separate property leads to surviving community, and two thirds of separate property to the children or the issues of the deceased

         4. if the other community is also deceased, the distribution as to the separate property is given as follows **

            1. first, to the issue of the decedent; and if the  issue of the decedent is not alive,

            2. to parents of the decedent (i.e., if one parent is alive, the one parent will receive all the property; and if both parents are alive they will receive half-half), if the parents of the decedent are not alive,

            3. to siblings of the decedent or the issue of the siblings (i.e., niece, nephew); and if the siblings of the decedent or the issue of the siblings are not alive,

            4. to grandparents of the decedent or the issue of the grandparents (i.e., aunts, uncles, cousins); and if the grandparents of the decedent or the issue of the grandparents are not alive,

            5. to the issue of the predeceased community (i.e., step kids); and if the issue of the predeceased community is not alive, 

            6. to the next of kin (i.e., closest living blood relative of the decedent); and if the next of kin is not alive,

            7. to the former parents-in-law of the predeceased community or their issue; and if the former parents-in-law of the predeceased community or their issue are not alive,

            8. the property escheats (i.e., the right of the government or state to take the unclaimed asset or property) to the state **

               1. Note that under Intestate Succession, adopted children and half blood (i.e., relative who has one common parent) are always treated as a natural child of the adopting parent; whereas step-children and foster children (i.e., children placed in a home legally by an agency under the state law) are treated as adopted children if it is established in court that the parent would have adopted them if it were not for legal barrier

  6. Laws of the Will

1. Choice of Law

   1. Definition

      1. Under the terms of a will, choice of law is a set of rules used to choose which law to apply when a will is probated (i.e., a legal process in which a will is reviewed to determine whether it is valid and authentic) in one state and the property is located at another 

   2. Rule

      1. With respect to the asset that is real property (= land), whether a person died testate (i.e., with a will) or intestate (i.e., without a will) will be determined by the law where the decedent domiciled

      2. With respect to the asset that is personal property (i.e., all property except land), whether a person died testate or intestate will be determined by the law where the decedent domiciled as well

      3. However, any issues relating to actual conveyance of the personal property will be resolved in accordance with the laws of the state where the property is actually located 

      4. Additionally, in cases where the decedent and the asset are located at different states, the courts of the state where the property is located can distribute the asset in accordance with the will of the decedent

         1. As to CC, as long as the Formalities of the Will (see above) complies, the asset can be probated  **

2. Advancement

   1. Definition

      1. Transfer of asset of a person that occurs during the lifetime of a person to a recipient in advance rather than at the time of the death of a person. The amount given to the recipient will be deducted later from the estate of the person when he or she passes away

         1. ​Note that the amount given to the recipient will be deducted later from the estate of the person if the asset is given as an advancement. If the asset given was just a gift, then there is no deduction​

   2.  Rule

      1. If a person passes away intestate (i.e., without a will), property given to a recipient by the decedent during the lifetime of a person is treated as an advancement if:

         1. there is a contemporaneous writing by the person or by the recipient indicating that the property was intended to be given as an advancement, and that it should be deducted from the estate of a person when the person passes away, and 

         2. the property is valued at a fair market value (i.e., the price for which a person could sell his or her property to another person, when neither has to sell nor buy and both of them know all the relevant facts of the property) at the time the recipient received it (i.e., however, if the value is listed in the writing, it is conclusive)

            1. Note that ‘advancement’ is different from ‘will & trust’. Will is a legal document that provides direction as to how the estate is to be distributed when a person passed away. It will detail what the estate consists of and who is to receive what. Trust allows one person, the trustee, to hold property for the benefit of another person, the beneficiary under the direction of the T. Unlike will, a trust may be transferred when T is alive. Advancement differs from will and trust in that the transaction takes place directly between the T and the beneficiary while the T is still alive

            2. Example) X gives a large amount of funds to H. If the funds given is an advancement (i.e., that meets the condition of the Rule above), then H will no longer be receiving funds from the estate (i.e., asset) of X once X passes away. However, if the funds given is not an advancement (i.e., does not meet the condition of the Rule above), and is just a gift, H will receive half of whatever is remaining in the estate of X **

3. Ademption

   1. Definition of Ademption

      1. Property identified in a will cannot be given to the beneficiary because it no longer belonged to the deceased at the time of death
   2. Types of Ademption
      1. Ademption by Satisfaction
         1. ​​This takes place when the T, during lifetime, gives his or her beneficiary all or a part of the gift intended to give by his or her will, usually in a case where T believes he or she may not be able to give the gift because the gift may not be in the possession of T at the time of his or her death. Namely, it provides that T decides to change the time of a gift to permit the beneficiary to enjoy the benefits of the gift before his or her death 

            1. Rule

               1. If the subject of the gift made while the T is alive is the same as the subject of a provision of the will, a lot of states presume that it is in place of the testamentary ( = related to will) gift

               2. However, in other cases, ademption by satisfaction will not be found unless it is supported by independent evidence like express statements or writings, which proves that the T or beneficiary intended this to occur

                  1. Note that if the value of ademption is not given in currency, and instead:

                     1. the value of the ademption is accurately expressed in a contemporaneous writing of T or the beneficiary, that value is conclusive

                     2. in all other cases, the property is valued at its fair market value

      2. Ademption by Extinction

         1. Definition of Ademption by Extinction

            1. ​This occurs when a T devises specific property in his or her will and the T no longer possesses that property, or the property substantially changed at the time of his or her death. That particularly devised property is therefore adeemed, and the devise (i.e., an item/gift that is left in the will)  fails. For example, a T makes a will giving his or her niece a diamond. Before T dies, he or she sells the diamond. Because the T no longer possesses the diamond when he or she dies, that specific bequest is adeemed by extinction

            2. As to CC, intent is important for determining whether T intended for the gift to fail. Thus, if the court rules that T did not intend for the gift to fail, the beneficiary has right to receive the devise 

               1. Note that the difference between “Ademption by Satisfaction” and “Ademption by Extinction”, the former applies to specific devise (i.e., gift of a particular item such as real estate or antique car), while the latter applies to both specific device and general devise (i.e., payable from the general assets of the estate such as fund or publicly traded stock). Additionally, note that there are other two types of device other than specific devise and general devise which are ‘demonstrative devise (i.e., hybrid between a specific devise and general devise)’ and ‘residuary devise (i.e., all other property not expressly dealt in the will)’ **

4. Abatement

   1. Definition

      1. At times, certain estatesare small to accommodate both the administration expenses/the claims of the creditors and all the different types of bequests(i.e., giving assets through the provision of the will) to beneficiaries. To allocate these little resources, certain types of devices are reduced or eliminated. This process is known as abatement

   2. Rule

      1. T can make arrangements in the will to determine how to abate. If the T has not made such provisions, states have rules that set how the devise be abated

         1. Generally, all gifts of personal property(i.e., all properties except for land), of whatever class, abate before dispositions of and thenreal property(i.e., land)

         2. And, generally, (a) residuary devise(i.e., all other property not expressly dealt in the will. That is, a gift remaining after the distribution of the will) will be the first to be abated, (b)general devise(i.e., payable from the general assets of the estate such as funds) will be next to be abated (c) demonstrative devise(i.e., hybrid between a specific devise and general devise such as any funds in a particular bank account or antique gifts (e.g., watch, fossil) in a particular watch or fossil collection) will be next to be abated, and (d) specific devise(i.e., gift of a particular item such as real estate or antique car) will be the last to be abated 

5. Simultaneous Death

   1. Issue

      1. The question here is whether the beneficiary survived the decedent 

   2. Rule

      1. Uniform Simultaneous Death Act: If the distribution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one did not survive the other

      2. Generally, each of the parties will receive half half

6. Lapse & Anti-Lapse

   1. Lapse

      1. Definition of Lapse under Will

         1. If the beneficiary is not alive at the time of the will is executed, the gift is void

      2. Rule

         1. If the beneficiary dies after the T executes his or her will yet before the T dies, the gift to the beneficiary lapse (i.e., fails) 

         2. Unless a contrary intent is expressed in the will, the gift falls into the residuary devisee (i.e., the person who takes all the property that remains in the estate after all debts are paid and gifts and bequests are satisfied), if there is one, and if there is no residuary devisee, the gift will pass by intestate succession (i.e., when a person dies without having a valid will in place, his or her property will pass without having a will, then the probate court will get to determine the distribution of the asset of the decedent. This is called an intestate succession) 

   2. Anti-Lapse

      1. Definition of Anti-Lapse under Will

         1. As to CC, in order to resolve a situation of what to do with the devises left in the will that have lapsed, California created a statute called “anti-lapse” statute. This law provides another person to take when the person who was to take the devise has died

      2. Rule

         1. In order for another person to take, under the anti-lapse statute, the another person must be a (a) blood relative of the creator of the will, or (b) blood relative of the creator of a former spouse or domestic partner (i.e., a person who shares a residence without marriage) **

7. Unworthy Beneficiary

   1. Criminal Decedent

      1. Rule

         1. Those who feloniously and intentionally cause a death of the decedent cannot take any benefit under the will, intestacy, or insurance benefits, because the criminal is deemed to have predeceased the decedent and neither the criminal nor the issue of the criminal will take

   2. Abuse of Decedent

      1. Rule

         1. A person who abuses the decedent will be treated as if he or she predeceased decedent if it is established by clear and convincing evidence that:

            1. physical abuse or neglect of decedent who is an elder or a dependent adult,

            2. the person who abused acted in bad faith against the decedent,

            3. reckless, fraudulent or ill-natured behavior was involved, and

            4. the decedent from the time of the acts until their death was substantially unable to manage his or her financial resources to resist fraud or undue influence

8. Additional Laws of the Will 

   1. Lien Exoneration

      1. Definition: The intent of the T, where he or she wants to have the debt on his or her property to be paid out of the estates before giving the property to the beneficiary

      2. Rule

         1. If T devised a specific gift subject to an encumbrance (i.e., burden, debt) for which T was personally liable, the executor (i.e., a person who is responsible for carrying out the will) was required automatically to pay off the debt before passing the property to the beneficiary

         2. As to CC, generally, the property transferred subject to an encumbrance will be passed to the beneficiary without the encumbrance paid off. Thus, in California, it is important to specify whether the debt on the property is to be exonerated (i.e.,paid off) prior to transfer or not. However, if the estate is not large enough to fully exonerate the debt, it is also important to consider which of other property could be cut back and in what sequence the property should be abated

   2. Gift

      1. Gift under Anticipation of Death 

         1. Definition: Gifts that are given by a person, to pay debt or bequest as a gift when he or she believe his or her death will be encountered due to a peril, are enforceable

         2. Rule

            1. The gifts must be personal property (e.g., all properties except for land) not real property (e.g., land)

            2. The person must deliver the personal property to the beneficiary

            3. However, the person could freely revoke the personal property any time if he or she survives the peril

            4. And the prior Will will not be affected and still be remained during the process above **

      2. After Acquired Property

         1. General Definition of After Acquired Property

            1. Property that is acquired by a debtor after he or she has filed to be declared bankrupt

         2. Definition of After Acquired Property in the context of will

            1. A property that was acquired after the will was executed by the T

         3. Rule

            1. Whether or not a person is entitled to the after acquired property depends on the language of the will

            2. All devises, that are covered in the will, will be given to the beneficiary, who is named in the will **

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