Wills & Succession
California Focus
Wills & Succession is tested on the California bar as part of the estate-planning cluster alongside Trusts and Community Property. California follows the Uniform Probate Code (UPC) in many respects but diverges significantly in areas such as intestate succession of community property, holographic wills, anti-lapse, the 120-hour survival requirement, and the presumption of undue influence for fiduciaries under Probate Code §86. Always apply California Probate Code unless the question directs otherwise.
Wills & Succession governs how a decedent's property is distributed at death. The subject breaks into two broad tracks: testate succession (distribution under a valid will) and intestate succession (distribution by statute when there is no valid will or the will does not dispose of all property). The bar tests your ability to determine whether a will is valid, whether it has been revoked or modified, how specific doctrines affect distribution, and how California law departs from the common-law/UPC baseline.
I. Intestate Succession
Intestate succession applies to any property not effectively disposed of by will. The decedent who dies without a will is said to die intestate. If a will fails to dispose of all property, the remaining property passes by partial intestacy.
A. Surviving Spouse’s Share (Common Law / UPC)
- No surviving descendants or parents: Surviving spouse takes the entire estate.
- Surviving descendants (all of whom are also descendants of the surviving spouse) and no other descendants of the spouse: Surviving spouse typically takes the first $150,000–$300,000 (varies by jurisdiction/UPC version) plus one-half of the balance.
- Surviving descendants who are not descendants of the surviving spouse: Surviving spouse takes the first $100,000–$150,000 plus one-half of the balance (UPC approach) or one-third outright (common law).
- No descendants but surviving parents: Surviving spouse takes the first $200,000–$300,000 plus three-fourths of the balance.
B. Shares of Descendants — Three Distribution Methods
Per Stirpes (Strict / Classic)
Division begins at the first generational level below the decedent, whether or not anyone at that level is alive. Each branch gets an equal share. If a person in a branch predeceased, that person's share drops to their descendants by representation.
Per Capita with Representation (Modern Per Stirpes)
Division begins at the first generational level with a living taker. Living members at that level take their shares outright. Shares of deceased members at that level drop by representation to their descendants.
Per Capita at Each Generation (UPC / California)
Division begins at the first generational level with a living taker. Living members take their shares. The remaining shares are pooled and then divided equally among the next generation of descendants. This ensures that persons in the same degree of kinship to the decedent always take equal shares.
CA Rule: Per Capita at Each Generation
California follows the per capita at each generation method under Prob. Code §240. This is the majority/UPC approach and is the default for both intestacy and class gifts in wills unless the testator specifies otherwise.
Worked Example — Comparing the Three Methods
Facts: Decedent (D) has three children: A (predeceased, survived by children A1 and A2), B (predeceased, survived by child B1), and C (alive).
| Method | C | A1 | A2 | B1 |
|---|---|---|---|---|
| Per Stirpes | 1/3 | 1/6 | 1/6 | 1/3 |
| Per Capita w/ Representation | 1/3 | 1/6 | 1/6 | 1/3 |
| Per Capita at Each Generation | 1/3 | 2/9 | 2/9 | 2/9 |
Under per capita at each generation, the two deceased children's shares (1/3 + 1/3 = 2/3) are pooled and split equally among the three grandchildren (A1, A2, B1), giving each 2/9.
C. Other Intestate Takers
- Parents: If no surviving spouse or descendants, estate passes to parents equally (or to the surviving parent).
- Siblings (and their descendants): If no surviving spouse, descendants, or parents, estate passes to siblings and descendants of predeceased siblings by representation.
- More remote kin: Grandparents, aunts/uncles, cousins — the "parentelic" system traces through each ancestral line.
- Escheat: If no takers can be found, property escheats to the state.
D. California Intestate Succession — Community & Separate Property Split
CA: Community Property Passes Entirely to Surviving Spouse
Under Prob. Code §6401(a), the decedent's one-half share of community property (and quasi-community property) passes entirely to the surviving spouse. Combined with the spouse's own one-half, the surviving spouse ends up with 100% of the community estate. This is one of the most important CA distinctions on the bar.
CA: Separate Property Shares (Prob. Code §6401(c))
The surviving spouse's share of the decedent's separate property depends on who else survives:
- One child (or issue of one predeceased child): Spouse takes one-half of SP.
- Two or more children (or their issue): Spouse takes one-third of SP.
- No issue but surviving parent(s) or their issue (siblings, etc.): Spouse takes one-half of SP.
- No issue, no parents, no siblings/their issue: Spouse takes all of SP.
| Who Survives | Spouse's Share of CP | Spouse's Share of SP |
|---|---|---|
| One child or issue of one deceased child | All (100%) | 1/2 |
| Two+ children or their issue | All (100%) | 1/3 |
| No issue; parent(s) or siblings | All (100%) | 1/2 |
| No issue, no parents, no siblings/issue | All (100%) | All (100%) |
II. Will Execution & Formalities
A. Attested (Formal) Wills — Common-Law Requirements
- Writing: The will must be in writing (typed, printed, or handwritten).
- Signature: The testator must sign (or direct another to sign in the testator's presence and at the testator's direction). A mark, initials, or partial name can suffice if intended as a signature.
- Witnesses: Generally two (some states require three) competent witnesses who:
- Observe the testator sign or hear the testator acknowledge the signature or the will (attestation).
- Sign the will within the testator's presence (line-of-sight test at common law; "conscious presence" test in modern/UPC jurisdictions).
- Are competent — generally any person who can observe, understand, and attest; no specific age, mental, or interest requirement under UPC.
- Publication: Some jurisdictions require the testator to declare ("publish") that the instrument is the testator's will. Not required under UPC.
CA Will Formalities (Prob. Code §6110)
- Will must be in writing.
- Signed by the testator (or by someone at the testator's direction in the testator's presence).
- Witnessed by at least two persons, each of whom (a) was present at the same time, witnessing either the testator's signing or the testator's acknowledgment of the signature or the will, and (b) understood that the instrument was the testator's will.
- Substantial compliance: Under Prob. Code §6110(c)(2), a document that does not fully comply may be treated as valid if the proponent establishes by clear and convincing evidence that the decedent intended the document to be the decedent's will. This is a significant CA safety valve.
B. Interested Witness Rule
Common Law — Interested Witness
At common law, a witness who is also a beneficiary under the will is an interested witness. This could void the will entirely or (in the majority approach) purge the interested witness's gift down to the amount the witness would have received by intestacy.
CA Interested Witness (Prob. Code §6112)
California creates a rebuttable presumption that an interested witness procured the gift by duress, menace, fraud, or undue influence. The witness-beneficiary takes nothing unless they can rebut the presumption. However, if there are two disinterested witnesses in addition to the interested witness, the presumption does not arise. Under UPC, being an interested witness does not affect validity at all.
C. Holographic Wills
Holographic Will Requirements
A holographic will is valid without witnesses if:
- The material provisions (and, in some jurisdictions, the material portions) are in the testator's handwriting.
- The document is signed by the testator.
- The document shows testamentary intent — the testator intended this writing to serve as a will.
CA Holographic Wills (Prob. Code §6111)
- The signature and material provisions must be in the testator's handwriting. "Material provisions" means the dispositive terms (who gets what).
- No witnesses required.
- Testamentary intent may be established from the document itself or by extrinsic evidence (including portions not in the testator's handwriting).
- Pre-printed will forms: Only the handwritten portions count as the holographic will. Printed matter is ignored for material-provisions analysis but may be used to show testamentary intent.
- A holographic will may be used as a codicil to modify an attested will.
D. Codicils
A codicil is a testamentary instrument that modifies, amends, or supplements an existing will. A codicil must be executed with the same formalities as a will (or, if holographic, the holographic requirements). A validly executed codicil republishes the underlying will as of the date of the codicil. This can cure certain defects in the original will (e.g., an interested witness problem disappears if the codicil is properly witnessed without the interested party).
III. Revocation of Wills
A. Methods of Revocation
1. Physical Act
A will may be revoked by a physical act performed with simultaneous intent to revoke. Physical acts include burning, tearing, canceling (writing "void" or "revoked" across the face), and obliterating. Under the UPC and California law, another person may perform the act at the testator's direction and in the testator's presence.
2. Subsequent Written Instrument
A will may be revoked by a later will or codicil that (a) expressly revokes the prior will (express revocation), or (b) contains provisions inconsistent with the prior will (revocation by inconsistency). If the later instrument completely disposes of the estate, the prior will is entirely revoked. If only partially inconsistent, the prior will is revoked only to the extent of the inconsistency.
3. Revocation by Operation of Law
- Divorce/annulment: In most jurisdictions and under UPC, divorce revokes all provisions in favor of the former spouse (treated as if the spouse predeceased). CA follows this rule under Prob. Code §6122.
- Marriage: Some jurisdictions treat marriage as revoking a pre-marital will (but this is the minority approach). CA does not revoke the will upon marriage; instead, the new spouse takes an omitted/pretermitted spouse share (Prob. Code §21610).
- Pretermitted heirs: Birth or adoption of a child after will execution does not revoke the will but triggers pretermitted heir statutes (see Section VII below).
B. Dependent Relative Revocation (DRR)
DRR — Key Doctrine
Dependent Relative Revocation provides that if a testator revokes a will (or a provision) based on a mistaken belief that would not have led to the revocation but for the mistake, the revocation may be set aside and the original will (or provision) given effect.
Classic scenario: T revokes Will #1 believing Will #2 is valid. Will #2 turns out to be invalid. Under DRR, the court may disregard the revocation of Will #1 if the disposition under Will #1 is closer to what T would have wanted than intestacy.
Limitation: DRR is an equity doctrine. Courts will not apply it if the original disposition and the attempted new disposition are so different that the testator likely would have preferred intestacy.
C. Revival
Revival of a Revoked Will
If T executes Will #1, then Will #2 (which revokes Will #1), and later revokes Will #2, does Will #1 "revive"?
- Common law (English view): Will #1 is automatically revived when Will #2 is revoked.
- UPC / California (Prob. Code §6123): Will #1 is not revived unless (a) it is re-executed with proper formalities, or (b) a later codicil or will shows the testator's intent to revive it, or (c) the testator's statements or circumstances establish intent to revive (UPC §2-509).
IV. Components of a Will
A. Integration
All pages or sheets present at the time of execution and intended to be part of the will constitute the will. Evidence of integration includes physical connection (staple, continuous numbering) and internal coherence.
B. Incorporation by Reference
Incorporation by Reference (UPC §2-510; CA Prob. Code §6130)
An extrinsic document may be incorporated into a will if:
- The document was in existence at the time the will was executed.
- The will sufficiently describes the document so it can be identified.
- The will manifests an intent to incorporate the document.
Exception (UPC §2-513; CA Prob. Code §6132): A will may refer to a written statement or list disposing of tangible personal property (not money or property used in trade) even if the list is prepared after the will, and even if the list is amended after execution. The list must be signed by the testator and must describe the items and devisees with reasonable certainty.
C. Acts of Independent Significance (Non-Testamentary Acts)
Acts of Independent Significance
A will may dispose of property by reference to acts or events that have significance apart from their effect on the will. The referenced act need not occur before or after execution; it need only have a lifetime purpose independent of the will.
Example: "I give the contents of my desk to A." The contents of the desk may change over time, but the act of placing items in the desk has independent significance.
D. Pour-Over Wills
Pour-Over Wills (Prob. Code §6300; UTATA)
A will may devise property to a trust established during the testator's lifetime (inter vivos trust), even if the trust is amendable and revocable and even if it is amended after the will's execution. Under the Uniform Testamentary Additions to Trusts Act (UTATA) (adopted in CA), the pour-over gift is valid if the trust is identified in the will and the trust terms are in a document other than the will that is signed before, concurrently with, or after the will. The trust may receive property from sources other than the will.
V. Will Contests
A. Testamentary Capacity
Testamentary Capacity Test
At the time of execution, the testator must:
- Be of legal age (18 in most jurisdictions including CA).
- Understand the nature of the act — know that they are making a will.
- Know the nature and extent of their property (a general understanding is sufficient; not a precise inventory).
- Know the natural objects of their bounty — recognize the persons who would ordinarily be expected to share in the estate (spouse, children, close relatives).
- Understand the disposition being made — how the above relate to form an orderly plan.
Testamentary capacity is a low threshold. A person may lack capacity to contract yet have capacity to make a will. Capacity is measured at the moment of execution — lucid intervals count.
Insane Delusion
Even if the testator meets the basic capacity test, a will (or a specific provision) may be invalidated if the testator suffered from an insane delusion — a false belief that a rational person would not hold, which is the product of a diseased mind, and which affected the disposition. The contestant must show a causal link between the delusion and the challenged provision.
B. Undue Influence
Undue Influence — Traditional Elements
Contestant must show:
- Susceptibility: The testator was susceptible to influence (due to age, illness, dependency, isolation, etc.).
- Opportunity: The influencer had access and opportunity to exert influence.
- Disposition: The influencer had a disposition (motive) to influence — typically to obtain an unnatural or disproportionate benefit.
- Result: The will reflects the result that would be expected from undue influence (an "unnatural" disposition favoring the influencer at the expense of natural objects of bounty).
CA Presumption of Undue Influence (Prob. Code §86; Evidence Code §662)
California creates a presumption of undue influence when the beneficiary stands in a fiduciary or confidential relationship with the testator (e.g., attorney, caregiver, financial advisor) AND was active in procuring the will. Under Prob. Code §21380, a gift to a "disqualified person" (the drafter, a transcriber, a care custodian, or a fiduciary) is presumptively invalid unless:
- The donee is related by blood or marriage to the testator.
- The instrument is reviewed by an independent attorney who certifies the transfer is free of undue influence (a "certificate of independent review").
- The gift is proved valid by clear and convincing evidence.
C. Fraud
- Fraud in the inducement: A person makes a false representation of a material fact, knowing it is false, with the intent to influence the testator, and the testator relies on it in making the will. Example: "Your son is dead" causes T to leave everything to the speaker.
- Fraud in the execution: A person misrepresents the character or contents of the instrument, and the testator signs without knowledge of its true nature. Example: T is told the document is a power of attorney, but it is actually a will.
D. Mistake
- Mistake in execution: T did not know the document was a will — the will is void.
- Mistake in inducement: T made the will because of an erroneous belief about an existing fact. Courts generally do not grant relief for mistake in inducement unless the mistake appears on the face of the will and the disposition the testator would have made is also apparent.
- Mistake in content / omission: The UPC (§2-805) and a growing number of jurisdictions (including CA to some extent through reformation) allow correction of mistakes by clear and convincing evidence.
E. Duress
If the testator was coerced by threats (of harm, litigation, exposure, etc.) into making or not revoking a will, the will or affected provision is invalid. Duress is closely related to undue influence but involves more overt force or threats.
F. No-Contest (In Terrorem) Clauses
CA No-Contest Clauses (Prob. Code §21310–21315)
California enforces no-contest clauses but narrowly. A no-contest clause is triggered only by a direct contest (a pleading alleging invalidity based on forgery, lack of capacity, undue influence, fraud, duress, mistake, or revocation). Filing a creditor's claim, seeking an accounting, or contesting the trustee's actions does not trigger the clause. The contestant forfeits only if the contest is unsuccessful; a probable cause exception existed before 2010 but was eliminated by statute — now the clause is enforced strictly if the conduct falls within the statutory definition of a "contest."
VI. Lapse, Anti-Lapse, Ademption, Abatement & Exoneration
A. Lapse
Lapse Doctrine
If a beneficiary predeceases the testator, the gift lapses (fails). A lapsed specific or general devise falls into the residuary estate. A lapsed residuary gift passes by intestacy (common law) or is distributed among the remaining residuary beneficiaries (UPC/modern view).
B. Anti-Lapse Statutes
Anti-Lapse (UPC §2-603)
If the predeceased beneficiary bears a specified relationship to the testator (under UPC, any grandparent or descendant of a grandparent), and the beneficiary left surviving descendants, the gift passes to those descendants by representation, unless the will shows a contrary intent.
CA Anti-Lapse (Prob. Code §21110)
California's anti-lapse statute is broader than the common law but narrower than UPC in one sense: it applies when the predeceased beneficiary is kindred (a blood relative) of the testator or kindred of a surviving, deceased, or former spouse. The gift passes to the beneficiary's issue by representation. Words of survivorship ("to A, if A survives me") do not automatically override anti-lapse in CA under Prob. Code §21110(b) — a significant departure from some jurisdictions.
C. Ademption
Ademption by Extinction
If a testator makes a specific devise ("my gold watch to A") and the property is no longer in the estate at death (sold, destroyed, given away), the gift is adeemed (extinguished). The beneficiary takes nothing.
- Identity theory (traditional/common law): If the specific item is gone, the gift fails — no inquiry into intent.
- Intent theory (UPC/modern/CA): Courts may consider whether the testator intended ademption. Under UPC §2-606, the beneficiary may receive replacement property, unpaid sale proceeds, insurance proceeds, or condemnation awards.
CA Ademption (Prob. Code §§21133–21134)
California follows a modified intent theory. If specifically devised property is not in the estate, the beneficiary may receive: (1) any balance of the purchase price owing at death, (2) property acquired as a replacement, (3) unpaid insurance or condemnation proceeds. If the testator was subject to a conservatorship and the conservator sold the property, the beneficiary receives the net sale price.
Ademption by Satisfaction
A lifetime gift to a beneficiary may be treated as an advancement (in intestacy) or satisfaction (in testate succession) of the testamentary gift. Under UPC/CA, ademption by satisfaction requires written evidence — either a writing by the testator or a written acknowledgment by the beneficiary.
D. Abatement
Order of Abatement
When estate assets are insufficient to satisfy all devises (after debts and expenses), gifts abate (are reduced) in the following order (absent a contrary will provision):
- Intestate property (first to abate).
- Residuary devises.
- General devises.
- Specific and demonstrative devises (last to abate).
Within each category, devises abate pro rata.
E. Exoneration
Exoneration of Liens
At common law, a specific devisee of encumbered property was entitled to have the lien paid off from the residuary estate (the "exoneration" doctrine). The modern/UPC trend and California rule (Prob. Code §21131) reject exoneration: the devisee takes the property subject to the lien unless the will expressly directs exoneration.
VII. Pretermitted (Omitted) Heirs
A. Pretermitted Child
CA Omitted Child (Prob. Code §§21620–21623)
A child born or adopted after the execution of the will who is not provided for in the will receives a share of the estate equal to what the child would have received by intestate succession, unless:
- The omission was intentional (apparent from the will).
- The testator provided for the child outside the will (e.g., by inter vivos trust or life insurance) with the intent that the transfer be in lieu of a testamentary provision.
- The testator had other children at the time of the will and devised substantially all the estate to the other parent — the presumption is that the testator expected the other parent to provide for the new child.
B. Pretermitted Spouse
CA Omitted Spouse (Prob. Code §§21610–21612)
A surviving spouse who married the testator after the execution of the will receives a share of the estate equal to what the spouse would have received by intestate succession (including all CP and the statutory SP share), unless:
- The omission was intentional (apparent from the will).
- The testator provided for the spouse by transfer outside the will intended to be in lieu of a testamentary provision.
- The spouse made a valid waiver (e.g., prenuptial agreement).
The omitted spouse's share is taken first from the estate passing by intestacy, then from all beneficiaries pro rata.
VIII. Will Substitutes
Certain property arrangements transfer wealth at death outside of probate. These "will substitutes" are not governed by will formalities but may interact with wills doctrines.
- Joint Tenancy with Right of Survivorship: At death of one joint tenant, the property passes automatically to the surviving joint tenant(s) by operation of law. Not subject to the will.
- Life Insurance: Proceeds pass to the named beneficiary, outside probate. If the beneficiary predeceases and no contingent beneficiary is named, proceeds typically fall into the estate.
- Pay-on-Death (POD) / Transfer-on-Death (TOD) Accounts: Bank accounts and securities registered in POD/TOD form pass directly to the named beneficiary. CA recognizes TOD deeds for real property (Prob. Code §§5600–5696).
- Revocable Inter Vivos Trusts: Property in a revocable trust passes according to the trust terms at the settlor's death, avoiding probate. Pour-over wills often work in tandem with these trusts.
- Retirement Accounts (IRAs, 401(k)s): Pass to the named beneficiary by contract.
Will Substitutes and Wills Doctrines
Will substitutes are generally not subject to wills doctrines (lapse, ademption, pretermitted heir statutes, etc.). However, some doctrines (e.g., the slayer rule, simultaneous death) may apply. On the bar exam, distinguish carefully between probate assets (governed by the will or intestacy) and nonprobate transfers (governed by contract, title, or trust terms).
IX. Powers of Appointment
A. Definitions
- Donor: The person who creates the power.
- Donee (Powerholder): The person who holds the power to appoint.
- Appointee: The person in whose favor the power is exercised.
- Taker in default: The person who takes if the power is not exercised.
B. General vs. Special (Nongeneral) Powers
| Feature | General Power | Special (Nongeneral) Power |
|---|---|---|
| Definition | Exercisable in favor of the donee, the donee's estate, the donee's creditors, or creditors of the donee's estate | Exercisable only in favor of a limited class that does not include the donee or the donee's estate/creditors |
| Tax treatment | Property subject to estate/gift tax in donee's estate (treated as if donee owned it) | Generally not included in donee's taxable estate |
| Creditor access | Creditors of the donee can generally reach appointive property | Creditors generally cannot reach appointive property |
| Exercise | Donee may appoint to anyone, including self | Donee may only appoint within the permissible class |
C. Exercise of Powers
- Specific reference required: If the donor requires exercise by "specific reference" to the power, a general residuary clause in the donee's will does not exercise the power.
- No specific reference required: Under UPC §2-608 / CA Prob. Code §611, a general residuary clause ("I give all the rest of my property...") exercises a general power of appointment unless the donor requires specific reference. A general residuary clause does not exercise a special power unless the will manifests intent to do so.
- Failure to exercise: Property passes to the taker(s) in default. If none, property reverts to the donor or the donor's estate (for a special power) or may pass to the donee's estate (for a general power, in some jurisdictions).
X. Simultaneous Death & the 120-Hour Rule
CA 120-Hour Survival Requirement (Prob. Code §§6211, 6403, 21109)
Under both the UPC and California law, a beneficiary must survive the decedent by 120 hours (5 days) to take under a will, by intestacy, or as a beneficiary of certain nonprobate transfers. If the beneficiary does not survive by 120 hours, the beneficiary is deemed to have predeceased the decedent.
- Applies to wills, intestacy, and most nonprobate transfers (joint tenancy, life insurance if no alternative beneficiary).
- Does not apply if the will expressly provides otherwise (e.g., "to A if A survives me, regardless of how long after my death").
- Does not apply if application would cause the estate to escheat.
- For joint tenants who die simultaneously, each is treated as having predeceased the other — so each joint tenant's share passes through that tenant's estate.
XI. Disclaimer / Renunciation
Disclaimer
A beneficiary may disclaim (renounce) an inheritance. The disclaimed property passes as if the disclaimant had predeceased the decedent. Under the Uniform Disclaimer of Property Interests Act (adopted in CA, Prob. Code §§275–295):
- The disclaimer must be in writing, signed, and delivered within a reasonable time (9 months for federal tax purposes under IRC §2518).
- The disclaimant must not have accepted the interest or any of its benefits before disclaiming.
- A valid disclaimer relates back to the date of death — the disclaimant is treated as never having had the interest.
- Disclaimed property passes to the next taker under the will, trust, or intestacy (or to the disclaimant's issue under anti-lapse, if applicable).
Strategic Use of Disclaimer
Disclaimers are commonly used for tax planning (e.g., disclaiming to let property pass to a bypass trust) or to avoid creditor claims (though some courts will not allow disclaimer to defraud creditors). On the exam, consider whether a disclaimer triggers anti-lapse or alters the distribution scheme.
XII. California Distinctions — Master Summary
| Issue | Common Law / Majority | California Rule |
|---|---|---|
| Intestate succession — CP | N/A (most states are not CP states) | Decedent's CP passes entirely to surviving spouse (Prob. Code §6401(a)) |
| Intestate succession — SP | Varies; spouse gets 1/3 to 1/2 | Spouse gets 1/3 or 1/2 depending on number of issue (Prob. Code §6401(c)) |
| Distribution to descendants | Per stirpes (some states) | Per capita at each generation (Prob. Code §240) |
| Substantial compliance | Not recognized (strict compliance) | Recognized — clear and convincing evidence standard (Prob. Code §6110(c)(2)) |
| Interested witness | Purge statute / void will | Rebuttable presumption of undue influence (Prob. Code §6112) |
| Holographic wills | Not allowed in all states | Valid; material provisions in testator's handwriting, signed, testamentary intent (Prob. Code §6111) |
| Revival | Automatic (English view) or varies | Not automatic; requires re-execution or evidence of intent (Prob. Code §6123) |
| Anti-lapse | Applies to specified relatives | Applies to "kindred" of testator or spouse; words of survivorship do not override (Prob. Code §21110) |
| Ademption | Identity theory (strict) | Modified intent theory (Prob. Code §§21133–21134) |
| Exoneration | Devisee entitled to lien payoff | No exoneration — takes subject to lien (Prob. Code §21131) |
| Undue influence presumption | Burden on contestant | Presumption for fiduciaries; certificate of independent review required (Prob. Code §21380) |
| No-contest clauses | Enforceable, probable cause exception | Strictly enforced; only triggered by "direct contest" (Prob. Code §§21310–21315) |
| Simultaneous death | USDA or 120-hour rule | 120-hour survival requirement (Prob. Code §§6211, 6403, 21109) |
| Divorce — effect on will | Revokes provisions for ex-spouse | Same — ex-spouse treated as predeceased (Prob. Code §6122) |
| Pretermitted spouse | Intestate share | Intestate share unless intentional omission, outside provision, or waiver (Prob. Code §§21610–21612) |
| Pretermitted child | Intestate share | Intestate share unless intentional, outside provision, or substantially all to other parent (Prob. Code §§21620–21623) |
XIII. Common Essay Patterns
Pattern 1: Validity of Multiple Testamentary Instruments
Setup: Decedent executed an attested will, later wrote a holographic codicil, and also had informal notes. Some witnesses were interested; some documents have questionable signatures.
Approach:
- Analyze validity of the attested will (writing, signature, two witnesses, presence).
- Analyze the holographic codicil (material provisions in handwriting, signature, testamentary intent).
- Determine if informal notes qualify as a holographic will or codicil, or can be incorporated by reference.
- Apply the interested witness rule (CA Prob. Code §6112 presumption).
- Consider substantial compliance (Prob. Code §6110(c)(2)) if formalities are deficient.
- If the codicil is valid, discuss republication of the underlying will.
Pattern 2: Revocation, DRR, and Revival
Setup: T executes Will #1, then Will #2 (expressly revoking Will #1), then physically destroys Will #2. Or T crosses out a provision and writes a new one that turns out to be ineffective.
Approach:
- Was Will #1 validly revoked by Will #2? (Subsequent instrument with express revocation clause.)
- Was Will #2 validly revoked by physical act? (Burning, tearing, canceling with intent to revoke.)
- Is Will #1 revived? (CA: not automatically; must show intent to revive.)
- If no revival, apply DRR: Would T have preferred Will #1 over intestacy? Compare dispositions.
- If DRR does not apply, distribute by intestacy.
Pattern 3: Will Contest — Capacity, Undue Influence, and No-Contest Clause
Setup: Elderly testator with declining health leaves most of estate to caregiver/attorney. Family members contest. Will contains a no-contest clause.
Approach:
- Testamentary capacity: Did T meet the four-part test at the moment of execution? Consider lucid intervals, medical evidence.
- Insane delusion: Did T hold a false belief that affected the disposition?
- Undue influence: Apply the four traditional factors (susceptibility, opportunity, disposition, result).
- CA presumption: Does the beneficiary qualify as a "disqualified person" under Prob. Code §21380? Was a certificate of independent review obtained?
- No-contest clause: Does the family's challenge constitute a "direct contest"? If yes and the contest fails, they forfeit their bequests. In CA, no probable cause exception applies.
Pattern 4: Distribution Problems — Lapse, Anti-Lapse, Ademption, Abatement
Setup: Several beneficiaries predecease T; specific property has been sold; estate has insufficient assets to pay all gifts.
Approach:
- Identify each gift as specific, general, demonstrative, or residuary.
- For predeceased beneficiaries: Does anti-lapse apply? Was the beneficiary "kindred" of T or spouse? Did they leave issue?
- For missing property: Is it ademption by extinction? Apply CA's modified intent theory — look for replacement property, sale proceeds, insurance.
- For insufficient assets: Apply abatement order (intestate property, residuary, general, specific/demonstrative).
- Exoneration: Property passes subject to lien in CA unless will directs otherwise.
- Class gifts: If a class member predeceases, does the class close? Anti-lapse may still apply to class gifts.
Pattern 5: Pretermitted Heirs and Intestate Succession Interplay
Setup: T marries after executing a will and/or has a child born after the will. Will makes no provision for the new spouse/child. Estate includes both CP and SP.
Approach:
- Omitted spouse: Does Prob. Code §21610 apply? Check for intentional omission, outside provision, or waiver.
- Omitted child: Does Prob. Code §21620 apply? Check for intentional omission, outside provision, or "substantially all to other parent" exception.
- Calculate the omitted heir's intestate share: Distinguish CP (entirely to spouse) from SP (1/2 or 1/3 to spouse depending on number of children).
- Determine where the omitted heir's share comes from (intestate property first, then pro rata from beneficiaries).
- Consider effect on remaining beneficiaries — their shares are reduced.
XIV. Issue Spotting Checklist
- Is there a valid will? Check formalities (attested vs. holographic).
- If formalities are deficient, does substantial compliance save the will (CA)?
- Were any witnesses interested? Apply CA Prob. Code §6112 presumption.
- Has the will been revoked? By physical act, subsequent instrument, or operation of law?
- If revoked, does DRR apply to undo the revocation?
- If a later will was revoked, does revival of the earlier will apply?
- Are there components issues? (Integration, incorporation by reference, acts of independent significance, pour-over.)
- Was there a marriage or divorce after the will? Pretermitted spouse? Revocation of ex-spouse provisions?
- Was there a child born or adopted after the will? Pretermitted child?
- Did any beneficiary predecease? Apply lapse and anti-lapse (kindred in CA).
- Has any specific property been sold, destroyed, or changed? Ademption by extinction — apply CA's intent theory.
- Did the testator make lifetime gifts to beneficiaries? Ademption by satisfaction?
- Are estate assets insufficient? Apply abatement in the correct order.
- Is there encumbered property? No exoneration in CA unless will directs.
- Is there a will contest? Analyze capacity, undue influence (CA presumption for fiduciaries), fraud, mistake, duress.
- Is there a no-contest clause? Is the challenge a "direct contest" under CA law?
- Are there nonprobate assets (joint tenancy, life insurance, POD/TOD, trusts)? Distinguish from probate assets.
- Are there powers of appointment? General vs. special? How exercised?
- Simultaneous death? Apply 120-hour survival rule.
- Has anyone disclaimed? Treat as predeceased; check interaction with anti-lapse.
- Is there community property vs. separate property? Determine intestate shares accordingly.
XV. Exam Tips
Tip 1: Always Classify the Property First
In California, the first step in any distribution problem is to classify property as community, quasi-community, or separate. This classification determines the surviving spouse's intestate share and interacts with pretermitted spouse statutes. If the question does not specify, state your assumption and analyze both possibilities.
Tip 2: Work Through Validity Before Distribution
Before distributing assets, confirm the will is valid. Systematically address: (1) execution formalities, (2) capacity, (3) undue influence/fraud, (4) revocation. Only after establishing a valid, unrevoked will should you move to distribution issues (lapse, ademption, abatement).
Tip 3: State Both Rules When in Doubt
If the question does not specify California law, state both the common-law/majority rule and the California rule. This maximizes points. Use the format: "Under the majority/common-law rule... However, in California..."
Tip 4: Anti-Lapse Is a Default Rule
Anti-lapse applies unless the will shows contrary intent. In CA, even words of survivorship ("if A survives me") do not automatically override anti-lapse. Discuss this explicitly when survivorship language appears in the fact pattern.
Tip 5: DRR Is an Equitable Safety Net
When you see a revocation that appears to be a mistake (T revoked believing a new will was valid, or T crossed out a provision and wrote a replacement that fails), raise DRR. Compare the original disposition to intestacy: if the original is closer to T's intent, DRR saves it.
Tip 6: No-Contest Clauses — CA Is Strict
Unlike some jurisdictions, CA no longer has a probable cause exception. If a beneficiary brings a "direct contest" (challenging validity on grounds of forgery, lack of capacity, undue influence, fraud, duress, mistake, or revocation) and loses, they forfeit. Advise on the risk carefully in essay answers.
XVI. Mnemonics
Testamentary Capacity: "ANKO"
- Age — Must be 18+.
- Nature of the act — Understands they are making a will.
- Know property — Knows the general nature and extent of assets.
- Objects of bounty — Recognizes natural objects (spouse, children, family).
Undue Influence: "SODR"
- Susceptibility — Testator was vulnerable.
- Opportunity — Influencer had access.
- Disposition — Influencer had a motive to influence.
- Result — The will reflects unnatural disposition favoring the influencer.
Revocation Methods: "PIO"
- Physical act — Burning, tearing, canceling, obliterating.
- Instrument — Subsequent written instrument (express or by inconsistency).
- Operation of law — Divorce, pretermitted heirs.
Incorporation by Reference: "EID"
- Existence — Document existed at time of will execution.
- Identified — Will sufficiently describes the document.
- Declared intent — Will manifests intent to incorporate.
Abatement Order: "I Rest, Go Slow" (Intestate, Residuary, General, Specific)
- Intestate property abates first.
- Residuary devises abate second.
- General devises abate third.
- Specific (and demonstrative) devises abate last.
Will Formalities: "WWS" (Writing, Witnesses, Signature)
- Writing — Must be in writing.
- Witnesses — Two competent witnesses attest.
- Signature — Testator signs (or directs signing).
XVII. Key Distinctions
| Concept A | Concept B | Key Difference |
|---|---|---|
| Testamentary capacity | Contractual capacity | Testamentary capacity is a lower threshold. A person may lack capacity to contract yet still have capacity to make a will. |
| Undue influence | Duress | Undue influence involves subtle, persistent pressure overcoming free will. Duress involves overt threats or coercion. |
| Fraud in inducement | Fraud in execution | Inducement: T knows it's a will but is deceived about facts affecting disposition. Execution: T doesn't know the document is a will. |
| Ademption by extinction | Ademption by satisfaction | Extinction: Specific property no longer in estate (involuntary failure). Satisfaction: Testator made a lifetime gift intended to satisfy the bequest. |
| Lapse | Ademption | Lapse: Beneficiary fails (predeceases). Ademption: Property fails (no longer in estate). |
| Revocation by physical act | Revocation by subsequent instrument | Physical act requires simultaneous intent + destructive act. Subsequent instrument requires a validly executed new document. |
| DRR | Revival | DRR: Undoes a revocation based on mistake. Revival: Restores a previously revoked will when the revoking instrument is itself revoked. |
| Per stirpes | Per capita at each generation | Per stirpes: Division always starts at first generation below decedent. Per capita at each generation: Starts at first level with living takers; remaining shares are pooled. |
| General power of appointment | Special power of appointment | General: Donee can appoint to self or estate. Special: Donee can only appoint to a limited class excluding self. |
| Incorporation by reference | Acts of independent significance | Incorporation: External document must exist at execution and be described. Independent significance: Referenced act can occur before or after execution if it has a lifetime purpose. |
| Probate assets | Nonprobate assets | Probate: Pass by will or intestacy. Nonprobate: Pass by operation of law, contract, or trust outside probate (joint tenancy, POD, life insurance, trusts). |
| Pretermitted spouse | Pretermitted child | Both receive intestate shares. Spouse: Married after will. Child: Born/adopted after will. Different exceptions apply (e.g., "substantially all to other parent" only for children). |
XVIII. Quick-Reference: Probate Code Sections
| Topic | CA Probate Code Section |
|---|---|
| Intestate succession — CP to spouse | §6401(a) |
| Intestate succession — SP shares | §6401(c) |
| Per capita at each generation | §240 |
| Will execution formalities | §6110 |
| Substantial compliance | §6110(c)(2) |
| Holographic wills | §6111 |
| Interested witness | §6112 |
| Revocation by subsequent instrument / physical act | §6120 |
| Revocation upon divorce | §6122 |
| Revival | §6123 |
| Incorporation by reference | §6130 |
| Tangible personal property list | §6132 |
| 120-hour survival rule | §§6211, 6403, 21109 |
| Anti-lapse | §21110 |
| Exoneration (no exoneration) | §21131 |
| Ademption | §§21133–21134 |
| Omitted spouse | §§21610–21612 |
| Omitted child | §§21620–21623 |
| No-contest clauses | §§21310–21315 |
| Disqualified persons / undue influence presumption | §21380 |
| Pour-over wills | §6300 |
| Disclaimer | §§275–295 |
| TOD deeds (real property) | §§5600–5696 |