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.

42 comments:

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

    ReplyDelete
  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

    ReplyDelete
  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.

    ReplyDelete
  4. This blog is so nice to me. I will continue to come here again and again. Visit my link as well. Good luck
    http://www.jualobataborsiherbal.com/ obat aborsi
    http://www.jualobataborsiherbal.com/cara-menggugurkan-kandungan/ cara menggugurkan kandungan
    http://obataborsi59.com/ obat aborsi
    http://obataborsi59.com/cara-menggugurkan-kandungan-dengan-cepat-dan-aman/ cara menggugurkan kandungan
    http://obattelatdatangbulan.info/ obat telat datang bulan
    http://klinikobataborsi.com/ jual obat aborsi
    http://jualobatpenggugurkandungan.net/ obat penggugur kandungan
    http://tandatandakehamilan.net/ tanda tanda kehamilan

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

    ReplyDelete
  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 happywheels.in||
    ||Happy wheels game at classic happy wheels game||
    ||Happy Wheels demo at happy wheels||
    ||Fireboy and watergirl at fireboywatergirl.co||

    ReplyDelete
  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

    ReplyDelete
  8. today decided to climb on the Internet in search of someth

    토토사이트

    ReplyDelete
  9. ello today decided to climb on the Internet in search of
    먹튀검증

    ReplyDelete
  10. Hello ^^
    The season when the car winds are back.
    Are you all working hard to prepare for your visit to Korea? Beware of colds and beware of corona
    I came in to see your site and I liked a lot of useful and good content!
    I also run a site, so will you come and see it?
    I think I would be very grateful for your feedback. Bye^^
    My site address: 토토사이트

    ReplyDelete
  11. I truly welcome all the extraordinary substance you have here.  먹튀검증

    ReplyDelete
  12. it's really nice and meanful. it's really cool blog. Linking is very useful thing.you have really helped lots of people who visit blog and provide them usefull information 토토사이트

    ReplyDelete
  13. I am constantly surprised by the amount of information accessible on this subject. What you presented was well researched and well written to get your stand on this over to all your readers. Thanks a lot my dear 메이저놀이터

    ReplyDelete
  14. I was taking a gander at some of your posts on this site and I consider this site is truly informational! Keep setting up. buy web traffic

    ReplyDelete
  15. You re in purpose of actuality a without flaw website admin. The site stacking speed is astonishing. It sort of feels that you're doing any unmistakable trap. Besides, The substance are perfect work of art. you have completed a fabulous movement regarding this matter 먹튀폴리스

    ReplyDelete
  16. surprised why this coincidence didn’t came about earlier! I bookmarked it 토토사이트

    ReplyDelete
  17. Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point.
    You obviously know what youre talking about,
    why throw away your intelligence on just posting videos to your site when you could be giving us something informative to read?해선커뮤니티

    ReplyDelete
  18. This information is invaluable. Where can I find out more? Check out my blog post 토토사이트

    ReplyDelete
  19. You make so many great points here that I read your article a couple of times. Your views are in accordance with my own for the most part. This is great content 먹튀검증

    ReplyDelete
  20. Thanks a lot for sharing this excellent info! I am looking forward to seeing more posts by you as soon as possible! 파워볼사이트

    ReplyDelete
  21. I hope I have this kind of skill. I think throwing knives is one of the sport now I'm not sure though. It's just cool. 안전공원

    ReplyDelete
  22. surprised why this coincidence didn’t came about earlier! I bookmarked it 안전놀이터

    ReplyDelete
  23. I think it will be more complete if you add some topics to this article. I have these types of articles on my blog nba중계

    ReplyDelete
  24. t is great to have visited your website. Thanks for sharing useful information. And also visit my website about health. 카지노사이트

    ReplyDelete
  25. This is a great post, I am very happy with this information 먹튀검증

    ReplyDelete
  26. I wish my dreams could come true.
    He acts as if he were my professor.
    She talks as if she had written the book.
    메이저놀이터

    ReplyDelete


  27. 현재 수많은 온라인바카라사이트가 운영되고 있습니다.
    하지만 다 같은 바카라사이트가 아닙니다.
    무리하게 첫충전을 주고 쿠폰을 난발하여 유저를모아
    제대로 된 바카라사이트운영을 하지않고 먹튀 바카라사이트 를 운영한다 해도 무방합니다.
    메리트카지노

    ReplyDelete
  28. This is an interesting post that I'll like to share with you 파워볼사이트

    ReplyDelete
  29. Wow that was odd. I just wrote an really long comment but after I
    clicked submit my comment didn't show up. Grrrr... well I'm
    not writing all that over again. Regardless, just wanted to say excellent blog!

    Feel free to visit my web blog :: 휴게텔

    ReplyDelete