Sunday, October 7, 2012

Question 5 - The Angry Decedent Strikes Again Wills

This question I would rate as a fastball.  There are a lot of issues to fly through, but they are the same issues tested in virtually every Wills question since 1980.  If you studied the California Probate Code (CPC) you probably did fine.  This is a very similar question to February 2011 Question 1.

Note that the call of the question asks about Dot and Sam, if you thought Church got anything you hard derailed.

From the California State Bar:
In 2004, Mae, a widow, executed a valid will, intentionally leaving out her daughter, Dot, and giving 50 per cent of her estate to her son, Sam, and 50 per cent to Church.
In 2008, after a serious disagreement with Sam, Mae announced that she was revoking her will, and then tore it in half in the presence of both Sam and Dot.

In 2010, after repeated requests by Sam, Mae handwrote and signed a document declaring that she was thereby reviving her will. She attached all of the torn pages of the will to the document. At the time she signed the document, she was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months. By this time, Church had gone out of existence.

In 2011, Mae died. Her sole survivors are Dot and Sam. What rights, if any, do Dot and Sam have in Mae’s estate? Discuss.
 I'll do that after the jump.

I. Assuming that the first will is utilized, Dot and Sam share the estate.

The issue is how property is distributed if the first will governs. Under the common law rule of lapse, if a beneficiary of a testator's will predeceased the testator, any bequests to the beneficiary would lapse (i.e., fail), and would fall into the residuary of the will (the block of remaining property after all specific, general, and demonstrative devises). Here, Church "had gone out of existence" by 2010, well before Mae died causing the gift to Church to fail.

The successors of Church may argue that the gift may be saved under California's antilapse statute. Under the statute, a bequest will not lapse if (1) if is to the testator's kindred, or kindred of a former spouse; and (2) the beneficiary leaves issue. Here, Church is not Mae's kindred or kindred of a former spouse because Mae's "sole survivors are Dot and Sam" even assuming Church was related to one of them, the gift would go to the nearest survivor and not the relative.

The gift to Church lapses and is placed in the residuary of the estate.  The residuary would be distributed through the laws of intestacy and half of Church's gift would go to Dot while half of Church's gift would go to Sam.  Thus, Sam receives 75% of the estate and Dot receives 25% of the estate.  While Sam may argue that  Mae's removal of Dot reflects her present intent not to give anything to Dot, that does not affect the disposition of the residuary clause under the laws of intestacy, absent a provision to the contrary.

II. Mae revoked her first will by destruction.

The issue is whether Mae revoked her first will by tearing it to pieces. 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. (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.  Since Mae tore the will she revoked it and the will is no longer valid.

Therefore, Mae effectively revoked the will.

III.  Mae's writing is not a holographic will because the material terms are not in her handwriting, however it may revive the revoked will under dependent relative revocation.

The issue is whether Mae's subsequent writing revives her prior will.  Dot can argue that Mae's writing does not contain material terms in Mae's own writing because those terms are included in typed yet torn pages of the previous will.  Sam can respond that, notwithstanding the holographic will difficulties, under the doctrine of dependent relative revocation, a will which the testator revokes by physical act in anticipation that a subsequent will would be valid may nonetheless be admitted to probate if the subsequent will turns out to be invalid.  Even though there is a failing on the part of the holographic will to comply with formalities it nonetheless is adequate to revive the prior will.

Next, after Jan. 1, 2009, a will which complies with the signature and writing requirements, but fails to comply with the witnessing requirements, may nonetheless be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will.  Here, Dot can explain that Mae, "was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months." This indicates that Mae is dependent on Sam and would do anything for him, and Sam will fail to produce clear and convincing evidence to the contrary.

Finally, Dot's best argument for invalidating the will is that Mae lacked the testamentary capacity and intent to create the will because of undue influence.  Dot will point to extrinsic evidence that Mae was reliant on Sam for her daily life functioning and that Sam was in a guardian/ward relationship with his mother.  This position of trust raises a presumption of undue influence to which Sam faces a clear and convincing evidence burden to rebut.  As noted above, he cannot do this.

Therefore all wills are invalid, and all property passes through the intestacy. Sam will get half and Dot will get half.


  1. Thanks for making this web site, and that i will be visiting again.

  2. This is a fantastic article. This really is top notch wonderful stuff from you, my friend. You really have impressed me with your work here. I hope you can keep doing this in the future as well!
    selbstklebende bh

  3. Take up one idea. Make that one idea your life - think of it, dream of it, live on that idea. Let the brain, muscles, nerves, every part of your body, be full of that idea, and just leave every other idea alone. This is the way to success.

  4. This blog is so nice to me. I will continue to come here again and again. Visit my link as well. Good luck obat aborsi cara menggugurkan kandungan obat aborsi cara menggugurkan kandungan obat telat datang bulan jual obat aborsi obat penggugur kandungan tanda tanda kehamilan

  5. Use this article to increase your knowledge . cara menggugurkan kandungan

  6. I love to see you have written this content very Well and want to write more so people will aware of this issue
    I have some favorite game Blogs as well like
    ||Happy Wheels at||
    ||Happy wheels game at classic happy wheels game||
    ||Happy Wheels demo at happy wheels||
    ||Fireboy and watergirl at||

  7. Hello today decided to climb on the Internet in search of something interetninkogo and found this site fine play slots now Today I will withdraw my first mo