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How intestacy Question Usually Arise (Cal. Prob. Code 6400)
Any issue involving intestacy is likely to result from a partial or total failure. Any part of the estate of a decedent not effectively disposed of by will passes to the decdent's intestate heirs as prescribed by the laws of intestate succession in Probate Codes 6400 through 6413).

In addition, a will may be denied probate after being contested by heirs. To determine heris it is necessary first to classify the decedent's property as community or separate property.
Rights to Decedent's Community property (Cal. Prob. Code 6401)
In CA, the decedent's share of community property passes to the surviving spouse or domestic partner in the absence of a will.
Separate Property: Share of surviving spouses or domestic partner (Cal. Prob. 6401)
The surviving spouse may take one-third of the decedent's separate property if the decedent is survived by (i) more than one child, or (ii) one child and the issue of one or more deceased children, or (iii) the issue of two or more deceased children.
  • The surviving spouse or domestic partner take one-half of the decedent's separate property if the decedent is survived by: (i) only one child or the issue of a deceased child, or (ii) no issue, but a parent or the issue of a parent. The surviving spouse or domestic partner takes all of the decedent's separate property if the decedent leaves no surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
If no issue survives- to parents (Cal. Probe Code 6402(b)
If no issue survives the decedent, the property passes to the decedent's parents equally or to the surviving parent
Simultaneous Death (CA Probate Code 6403)
If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedant by 120 hours, for purposes of intestate succession it is deemed that the person failed to survive the decedent
Joint Tenants (CA Probate Code 222)
When two joint tenants die and it cannot be established by clear and convincing evidence that one sruvived the other, one half of the property goes to the estate of each joint tenant. if property is held by more than two joint tenants and all of them have died and it cannot be determined by clear and convincing evidence that one outlived the others, the property is divided into as many portions as there are joint tenants and a share goes to each joint tenatn's estate.
Disclaimers (CA Probate Code 282)
The CA disclaimer statute recognizes that no one can be compelled to receive a gift. Therefore, a beneficiary or heir may disclaim any interest that otherwise would pass to the person from the decedent or the decedent's estate, with the consequence that the interest passes as though the disclaiming party predeased the decedent.
Procedure for Disclaimer (CA Probate Code 287)
The disclaimer must (i) be in writing, (ii) signed by the disclaiment, (iii) identify the decedent, (iv) describe the interest being disclaimed, and (v) state that there is a disclaimer and the extent of it.
  • Must be filed within a reasonable time: Under CA law disclaimer is deemed to have been filed within a reasonable time if it is filed within 9 months after the later of the death of the decedent or the date the intrest becomes indefeasibly vested.
  • Federal law requirement: The time for making a disclaimer under federal law is nine months from the later of the decedent's date of death or the beneficiary's 21st birthday
Estoppel if any benefits accepted (CA Probate Code 285)
An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits. In other words, a person who e.g. transfers or encumbers the property or enteres into a contract for its sale is estopped from disclaiming the property
Inherit from Adoptive Parents Same as Natural Child (CA Prob. Code 6450)
For purposes of succession, an adopted child is deemed a descendant of the person who adopted her, the same as a natural child. She inherits from the adoptive parents and from their relatives they inherit from her.
Do not inherit from natural parents (CA Probate Code 6451)
An adoption severs the relationship of parent and child between an adopted person and her natural parent, and thus the adopted person does not inherit from her natural parents or their relatives, unless:
  • (i) the natural parent and adopted person lived together at any time as parent and child, or the natural parent was married to a domestic partner of, or cohabiting with, the other natural parent at the time the child was conceived and that parent died before the birth of the child; and
  • (ii) the adoption was by the spouse or domestic partner of either of the natural parents of the adopted person or after the death of either of the natural parents
Inheritance from or through child (CA Probe Code 6451)
Neither a natural parent nor a relative of a natural parent (except for a whole blood brother or sister of the adopted person or the issue of such brother or sister) inherits from or through the adopted person on the basis of a parent and child relationship between the adopted person and the natural person or after the death of either of the natural parents.
Equitable Adoption
Courts have recognized that under certain circumstances it is equitable to treat a forst child as if she were the adopted or natural child of the foster parent. If the foster parent has held the child out to the world as the parent's own child (e.g. the child has been told that she was adopted, the child uses the family name, the child assumes familial responsibility to the parents), the foster child amy be treated by a court as the descendant of the foster parent who has died intestate although the child was never formally adopted. Usually the doctrine is applied if:
  • (i) the foster parents made and agreement with the child's natural parents that they would adopt the child and then they did not adopt; or
  • (ii) the forst parents confused guardianship proceedings with adoption proceedings
Will operates at time of testator's death (CA Probate Code 21105)
The will operates upon circumstances and properties as they exist at the time of the testator's death.
Person who may make a will (CA Probate Code 6100)
An individual 19 years of age or older who is of sound mind may make a will
Present intent required
The intention required is a present testamentary intent. When the decadent signs the instrument, she must intend to make a will not. A written statement of an intention to make a will in the future is not enough. For example, if a person writes a letter to another stating, "I am going to make a will leaving all of my property to you," the letter is not a will even though it otherwise satisfies the requirements for holographic wills.
Mental capacity to make a will (CA Probate Code 6100.5)
An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
  • (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
  • (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
In general, the standard for testamentary capacity-which is a legal standard, not a medical standard-is relatively low. Accordingly. courts have found testamentary capacity even where the testator was suffering from Alzheimer's disease or senile dementia, and even after a guardian or conservator was appointed to manage the testator's affairs.
Wrong will signed
Majority view- cannot be probated: When a testator signs the wrong will, the will cannot be probated because the testator did not intend the instrument she signed to be her will
Undue influence when signing the will
Confidential relationship plus suspicious relationship = rebutable presumption of undue influence


Undue influence is shown when such control was exercised over the mind of the testator so as to overcome his free agency and free will and to substitute the will of another so as to cause the testator to do what he would not otherwise have done but for such control.


  • 1) If you have a confidential relationship. Ex. fiduciary relationship
  • 2) suspicious circumstances
  • an unnatural dispositions.
  • 3) leads to a presumption which the burden then shift
A presumption of undue influence aries when an attorney with whom the testator had a continuing fiduciary relationship is a beneficiary under the will, which is not necessarily overcome simply because the will was actually drawn up by an independent attorney with whom the testator consulted on his or her own.
  • The presumption is caused by the relationship and suspicious circumstances.
  • Did the dilution effect the disposition is test 2
Conditional wills (Cal. Prob. Code 6105)
A will may be expressly conditional upon the happening of a certain event. If the condition does not happen, the will will not be given effect
Determining whether intent Conditional- Extrinsic Evidence Admissible
Normally courts will admit extrinsic evidence of the circumstance surrounding execution and of the testator's subsequent acts to resolve such uncertainties. The fact that the testator kept the will a period of time after the occurrence of the condition that would have rendered the will inoperative may tend to show that it was not intended to be conditional.
Formal (Attested) Wills (CA Probate Code 6110(c))
Unless clear and convincing evidence standard applies, CA requires that, except as provided for holographic wills, a will must:
  • (i) be in writing
  • (ii) be signed by the testator (or by another person in his presence and at his direction, or by a conservator)
  • (iii) the testator's signing or acknowledgment of his signature or will must occur in the joint presence of at least two witnesses who sign the instrument during the testator's lifetime; and
  • (iv) the witnesses must understand that the insturment being witnessed is the testator's will
The testator must sign the will (CA Probate Code 6110(b))
The will must be signed either (i) by the testator, (ii) in the testator's name by some other person in the testator's presence and by the testator's direction, or (iii) by a conservator pursuant to a court order
What constitutes a signature?
The signature need not be the proper and full name of the testator. It can be his nickname or his initials if this is intended to serve as completed signature. Letters signed "Mother" or "Uncle Joe" have been probated as holographic wills.
Witness must sign will before testator dies (CA Probate Code 6110(c)
The will must be signed by at least two witnesses. CA does not require the witness to sign the will in the presence of the testator or of each other. However, each witness must sign the will before the testator dies.
Witness must understand document is testator's will (CA Probate Code 6110(c)(1)
Something about the execution process must convey to the witness the information necessary for them to realize and understand that the document being signed is the testator's will
Witness Competency- must be competent when will executed (CA Probate Code 6112(a)
To effectively attest a will, a witness must be competent at the time the will is executed. The that a competent witness subsquently becomes incompetent after the execution of the will does not disqualify him as a witness nor, according the the usual rule, does a witness who is incompetent at the time the will is executed become competent because of subsequent event.
Witness takes devise if two disinterested witnesses (CA Probate Code 6112(b)
A will or any provision thereof is not invalid because the will is signed by an interested witness. Unless there are at least two other disinterested subscribing witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the wintess procured the devise by duress, menance, fraud, or undue influence.
California's "Clear and Convincing" Standard (CA Probate Code 6110(c)(2)
For decedent's dying on or after January 1, 2009, if a will is not executed in compliance with the witnessing requirements it may nevertheless be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the will he intended the will to constitute his will.
  • Analytically, should first apply the traditional formalities to determine that the will is invalid under those requrement should then resort to the "clear and convincing" alternative ground for validating the will.
Curative Doctrines: Substantial Compliance and Harmless Error
Substantial Compliance- A court will let a defective will into probate because:
  • i)  Intent was clear.
  • ii) Substantial compliance with the formalities.
A court may excuse non-compliance with statutory informalities if there is clear and convincing evidence that the decedent intended that the document to be his or her will


Where witnesses, with the intent to attest a will, sign a self-proving affidavit but do not sign the will or an attestation clause, clear and convincing evidence of their intent should be produced to establish substantial compliance with the statutory requirements.


Harmless Error
  • a)    Under § 2-503, a court says that the error is harmless and therefore we will dispense with the requirements of the wills act.
  • b)    Harmless error is not substantial compliance.
  • c)    Requirements: (i) Clear and convincing evidence; (ii)    Intent.
  • d)  Example/Analogy: You arrive for a 9:00 exam at 10:30.  You couldn’t have cheated because monitors know that no one has left the exam room prior to your arriving.
  • e)    Harmless error is theoretically an easier standard.
ú  i)    Imagine a will with no witnesses, but very clear intent. ú  ii)    A no-witness will shall fail under any traditional wills act. ú  iii)    May pass a harmless error test.
Holographic wills (CA Probate Code 6111)
A holographic will is an unwittnessed will signed in the handwriting of the testator. Formalities are not required.


Requirements: the signature and the material provisions must be in the testator’s handwriting.  The entire will need not be in testator’s handwriting.  § 6111(a).
  • a)     Handwriting, not typing.
  • b)     Policy: the authenticating protection that we find in testator’s handwriting as substituting attestation is lacking.  There is no protection in type-written holo wills.
  • Extrinsic evidence is admissible.  § 6111.5.
Date not required on a holographic will, but is helpful
While the statute does not require a statement as to the execution date of the holographic will the absence of a date on the instrument could raise problems if another will containing inconsistent provisions exists.
  • If no date exists on the holographic will and an issue is raised as to whether the provisions of the holographic will control or whether the provisions of another will control, the holographic will will be considered invalid to the extent it is inconsistent with the other will. However, if competent evidence exists that establishes that the holographic will was executed after the date of the execution of another will, the holographic will controls.
Testamentary intent of a holographic will
Another problem area in holographic wills involves the question of whether a writing was executed the required testamentary intent. This ordinarily arises when a person sends an informal letter to someone stating the recipient is to have everything upon the sender's death. To give effect to the paper as a will, the writer must have a present intention that the paper serve as the will of the writer. If the writer states what she is going to do in the future- "I am going to make a will leaving everything to you," that is not sufficient.

If the statement "You get everything at my death" is made within the context of a chatty letter giving a lot of family news, the instrument likely will be denied probate. Letters admitted to probate as holographic wills have usually been short and to the testamentary point, or written while in extremis.
Revocation, addition, or deletion (CA Probate Code 6226)
A CA statutory will may be revoked and may be amended by codicil in the same manner as other wills. Any additions to or deletions from the CA statutory will on the face of the will form, other than in accordance with the instructions, will be given effect only where clear and convincing evidence shows that the additions or deletions reflect the clear intent of the testator. Absent such a showing, a court may determine either that the addition or deletion is ineffective and will be disregarded, or that all or a portion of the CA statutory will is invalid, whichever is more likely to be consistent with the intent of the testator.
Methods of revoking a will
A valid will once executed can only be revoked by:
  • (i) a written instrument executed with the formalities prescribed by the Statute of Wills
  • (ii) by a physical act; and
  • (iii) by operation of law
Express Revocation (CA Probate Code 6120(a)
The revoking instrument must be executed with the formalities required for execution of wills. A formally attested will may be revoked by a holographic will.
Implied revocation (CA Probate Code 6120(b)
A will may be revoked in whole or in part by implication from the terms of a subsequent instrument. To the extent that a second will makes an inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified.
Physical act requirement
1. The will must be "burned, torn, canceled, obliterated, or destroyed."

2. This act must be accompanied by simultaneously by a present intent to revoke the instrument; and

3. Where the act of revocation is performed by a person other than the testator, the other person must act in the presence of the testator and at her direction
Will Executed in Duplicate- Revocation of one Duplicate Revokes Will (CA Probate Code 6121)
Where a will has been executed in duplicate and a physical act of revocation has been performed on one of the executed duplicates, the will (including the untouched duplicate) is revoked. But the destruction of an unexecuted copy of a will does not have the effect of revoking the executed will.
Act of Revocation Performed on codicil does not revoke will
An act of revocation physically performed upon a codicil does not also revoke the will, even if the testator so intended. The act must be performed on the will itself to revoke it
Revocation of will may revoke separate codicil
The revocation of a will by physical act has usually been held to revoke a codicil on a separate sheet, if the testator so intended.
Sufficiency of Revocation through burning
Something less than total destruction by fire is sufficient to constitute the required act of burning. Even a slight singeing with the intent to revoke seems to be sufficient. The burning may occur on any portion of the will, even though it is not a "material" part, however, the singeing of an envelope or outside cover probably would not be sufficient
Sufficiency of Revocation through Tearing
Cutting or tearing is usually authorized as an act of revocation. It is probably necessary that the instrument be torn through some material part (or at lest through some of the the words) and that whatever tearing did occur he the complete act intended by the testator.
Sufficiency of Revocation through Obliteration
Obliteration, which includes erasing, may be held to mean that the will must be made illegible, but in many states this seems not to be necessary. Where "cancellation" is not expressly authorized, obliteration is probably satisfied by drawing lines through the words of the will or across the face of the instrument.

Obliteration must occur on a material part of the will.

In the case of a partial revocation, those portions to be revoked must be obliterated for the revocation to be effective.
Sufficiency of Revocation through Cancellation
Cancellation is the act of drawing lines through a wil or through provisions of the will. A "X" or "VOID" written across the face of a will is a cancellation. Cancellation, like obliteration and tearing, must take place on a material part of the will or at least must "touch the words of the will."

A large "VOID" written on the back or in the margin of the paper or writing will not suffice as a cancellation. Marginal notions might constitute a valid holographic instrument if the material provisions and signature are in the handwriting of the testator.
Requirement of Concurrent intent
The intention to revoke must be concurrent with the physical act. A change of mind after completing the act of revocation will not prevent revocation or reinstate the will.
  • 1) If T draws an "X" across the face of the will, telling a wtiness that he is revoking his will, it is revoked. If he later tells the witness he has changed his mind and the will is good, the will is still revoked.
  • 2) Suppose that T accidently destroys his will when he is burning some papers. Subsequently, T decides to treat his will as revoked and writes in a typed letter to Z, "I meant to destory that will anyway. It does not express my present wishes. I'm glad it burned up." Has the will be revoked? The orthodox view: No. The intent to revoke must be concurrent with the act. To revoke this accidentally destroyed will, T must now execute a written instrument. Some courts, however, have been persuaded that the testator should be permitted to "ratify" the earlier act if the instrument was destroyed.
California Omitted Spouse or Domestic Partner Statute (CA Probate Code 21610-21612)
CA's omitted heir statutes protect a surviving spouse or domestic partner from being unintentionally omitted from the deceased spouses's or domestic partner's testamentary instrument.
  • Statute provides that if a person marries or enters into a domestic partnership after execution of all of the decedent's testamentary instruments and the spouse or domestic partner survives the decedent, but the spouse or domestic partner is not provided for in the decedent's will or revocable trust, the surviving spouse or domestic partner may take, in addition to his share of the community property and quasi-community property, his intestate share of the decedent's property. The surviving spouse or domestic partner's intestate share of the separate property may not exceed one-half of the value of the decedent's separate property.
Exception to CA omitted Spouse or Partner Statute
Because the purpose of these provisions is to protect a surviving spouse or domestic partner who has been unintentionally omitted by the decedent from her testamentary instruments, the surviving spouse or domestic partner does not receive his intestate share if any of of the following is established:
  • a) The decedent's failure to provide for the spouse or domestic partner in the will or revocable trust was intentional and that intent appears from the face of the will or revocable trust (not from extrinsic evidence)
  • b) The decedent provided for the spouse or domestic partner by transfer outside of the will or revocable trust and the intention that the transfer be in lieu of a provision in the will or revocable trust is shown by statements of the testator/ settlor or from the amount of the transfer or by other evidence; or
  • c) The decedent's surviving spouse or domestic partner made a valid agreement waiving the right to share in the decedent's property.
Satisfying the share of the spouse or domestic partner
Whose property is used to satisfy the share of the surviving spouse or domestic partner?
  • (1) The share is taken first from the decedent's estate not passing by will or trust;
  • (2) If that is not sufficient, so much as may be necessary to satisfy the share is take pro sata from all the beneficiaries taking under the decedent's will
Revival of Revocable Wills
The problem of "revival" occurs in this fact situation: Will-1 is executed. Will-2 is executed, and Will-1 is either expressly or impliedly revoked in whole or in party by Will-2. Then, Will-2 is revoked. Is Will-1 now admissible to probate as originally executed? Or to put it differently is Will-1 revived? Usually the question of revival occurs where the testator revoked Will-2 by a physical act.
  • Whether Will-1 is revived depends on the testator's intent , the nature of the evidence offered to show that intent, and the way the testator revoked Will-2.
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