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Wills and Trusts
Thomas Jefferson School of Law
Martindill, Michael John


Thomas Jefferson School of Law

Spring 2012, Monday and Wednesday 8 – 9:15 p.m.

Section 171.2

Professor Martindill

Professor Michael Martindill, Esq.

Certified Specialist in Estate Planning,

Trust and Probate Law by the State Bar

of California, Board of Legal Specialization.

Office: (619) 473-0457 Fax: (619) 473-0467



· Will or testament – lawful document providing voluntary disposition of assets upon death

· Codicil – written supplement to a will / amendment to will and codicil supersedes will to the extent there is inconsistency between them

· Testator/testatrix (Transferor) – one who makes a will / codicil

· Devise – gift of real property

· Bequest – gift of personal property

· Legacy – gift of money

· Intestate – dying without a will

· Heir/Heir-at-law – those persons designated by statute as being next in line to inherit

· Beneficiary (Transferee) – those persons named in will to inherit

· Issue – lineal descendants of decedent

· Probate, Surrogate, Orphan’s Court (CA = Probate Court) – Courts having jurisdiction to hear matters arising from decedent’s estates or trusts

· Testate – Decedent dies leaving a valid Will which directs disposition of estate

· Intestate – Decedent dies without a Will and estate is distributed according to state law

CLASS 1 – INTESTACY – What you left behind. Who you left behind.

A. In General – PC 6400. (All PC references are to California Probate Code.)

Analysis steps? Was decedent married? Lawfully? Was there a will?

B. Community and Quasi-Community Property (CA = CP state)

All to Surviving Spouse. [unless he left it to someone else in his will]

Did he have separate property? Property had prior to marriage, inheritance, gift during marriage..stays separate property. Those would then be distributed according to Intestacy rules.

[In re: Gardiner Estate all note cases will be discussed by Professor]

CA AB 433-Petition for Recognition of Change of Gender

[McDaniel note case]

C. Separate Property – Surviving Spouse or Registered Domestic Partner (RDP)

PC 6401 (C)(1)(2)(3)

1. 1/2 to spouse or Domestic Partner, 1/2 to:

a. One child or issue, if none to,

b. Parents or issue of parents (aka. Siblings) – only if no kids; Example: husband dies, his parents have died, and his sister, but sister had kids…1/2 goes to them.

2. 1/3 to spouse of Domestic Partner; 2/3 to:

a. Two or more children or their issue.

Example: 2 kids, 1 deceased child but he had 3 kids = full share to surviving children and the full share to the deceased child is split between his children = “to issue by right of representation”…means they get their parent’s share, equally divided amongst them.

3. All to surviving spouse or Domestic Partner if:

a. No children or issue.

b. No parents.

c. No issue of parents.

D. Separate Property – No Surviving Spouse or RDP

1. All to children or issue, by right of representation.

E. Separate Property – No Surviving Spouse , No RDP, No Children or Issue; all to:

1. Surviving parent(s).

2. Issue of parents (siblings).

3. Surviving grandparents.

4. Issue of grandparents (aunts/uncles/cousins).

5. Issue of predeceased spouse.

6. Other surviving relatives of decedent (great grandparents, etc.).

7. Surviving parents of predeceased spouse.

8. Issue of parents of predeceased spouse.

9. Escheat.

[Shellenbarger-note case] – 2008 CA – decedent dies, no spouse, no children, parents still alive. Surviving father had left mother when she was pregnant with the guy who died. He had never met his father. Father also paid $0 child support. Surviving Mother brings action to disinherit Father on principles of equity. Why should he get anything? Case of first impression. Court said NO. There is no concept of disinheritance in equity. You are either a surviving parent or not.

F. Table of Consanguinity P.93 of Text

CLASS 2 Intestacy-Continued.

A. Exception – (Look-Back Rule – CA only) – if no Spouse or Issue & no will. Was married but the spouse died 5 years earlier. He had inherited her property when she died.

1. Real Property inherited from predeceased spouse within 15 years that was predeceased’s Separate Property.

2. Personal Property titled (stocks, bank accounts) and 10K or more within five years. [That asset gets pulled out of his intestate distribution & goes to wife’s intestate distributions. Asset must still be part of his estate…if he spent it, etc. it doesn’t exist anymore & this does not apply.]

B. Failure to Survive – PC 6403 (a) – To be an “heir at law,” you must survive the decedent.

Janas v. Tarasewicz, p. 80 (All Ap.@ references are to the textbook cases to be briefed by the students.) Husband and wife unknowingly took Tylenol laced with cyanide. Husband had no vital signs, pronounced on September 29th. Wife’s heart was restarted, but she died on October 1st. Husband’s life insurance was paid out to wife’s parents. Husband’s parents brought the action. Issue: did she survive her husband? She had vital signs longer. So, she gets the 100k even though she never got to spend it. [irreversible cessation of circulatory and respiratory systems or brain] CA – Default survivorship = 120 hours. {levels of proof = prima facie, preponderance, clear & convincing, beyond a reasonable doubt} CA standard for survivorship = clear & convincing evidence. [Testator or Trustor can set a longer/shorter period for survivorship.]

C. Parent/Child Relationship – PC 6450

1. Natural Born – Mom/Biological Dad. [historically, illegitimate children had no inheritance rights. CA says legitimacy has no relationship to inheritance.] Sperm donor does not count as parent. Chambers Note Case – decedent dies intestate. Alleged child claimed to be child of decedent. Birth certificate listed the Mother’s husband (presumption). Trial court held for child. Appeals sent it back – so the court would require “clear and convincing evidence” rather than “preponderance of the evidence” for intestacy.

2. Presumptive Parentage – when a child is born under particular circumstances where it is presumed they are the child of a certain parent…Probate Code adopts the Family Code for this issue. Conclusive presumption = if a child is born to a married woman, it is presumed that is a child of the marriage. The other presumptions are rebuttable. Scott Note Case – decedent died in car accident. Half-sister filed a wrongful death suit. Usually only closest heir (in intestacy) has standing to bring wrongful death action. And someone else steps in & says he is the father & has the right to bring the action. Sister demanded a blood test – and he was not the biological father. He sued for status as a presumed father under the Family Code since he held the child out to be his own and the child lived with him at times. Does Presumed Parentage give greater rights than sibling?? Yes.

3. Legally Adopted – PC 6451(c)

a. Inheritance rights to and from natural parents – after adoption.

Hall v. Vallandingham, p. 97 – Birth uncle dies after kids’ biological father dies & they had been adopted by their stepdad. Once a child is adopted, the rights of both the natural parents and relatives are terminated.

b. Stepparent Exception – CA has adopted this exception = if after the death of one parent, the kids can inherit from family of dead parent. (So can inherit from both natural parents and step parent.)

c. Adult adoptions

Duke p. 107-108 – Old rich lady, Duke, adopts, Chandi. (hare Krishna from dance class) Rule = adoption, unlike marriage, is not revocable.

4. Equitably Adopted – PC 6454. – Required factors:

(a) Relationship begins at Minority.

(b) Relationship continues throughout lifetime of first to die

(b) Legal barrier prevented legal adoption from occurring (ex. Biological parent refused to consent)

O’Neal v. Wilkes, p 109. – Child’s Mother died when she was 8. O’Neal was passed around, and lived with Roswell Cook. Court found the Aunt who passed her to others did not have legal authority to enter contract for adoption. Lame. Dissenting opinion cites the concept of Equitable Adoption.

Equitable child is not heir of equitable grandparent or equitable sibs

[Furia-note case] = Table of consanguinity does not apply in equitable adoption cases. Only parent-child.

Clear and


2. Not mentally competent.

(a) Does not have sufficient mental capacity to: (PC 6100.5)

1). Understand act.

2). Comprehend property.

3). Remember living decedents.

(b) Other considerations

1). Attorney=s opinion [Gonsalves-note case] – CA 1993 – testator disinherited his niece shortly before death. Niece sued & sued lawyer who drew it up…saying lawyer should have known her uncle lacked testamentary capacity. Ruling = lawyer may rely on own judgment or lack there of (case gives lawyers responsibility, but also gives discretion). You can ask your client to go get a psych eval…

2). Timing and causal connection – timing matters. When did they lose their mind??

3). Incapacity attack suit – Be aware if you represent beneficiaries…don’t take on contingency. Be careful if you represent kids in an incapacity suit…the parent may just be competent enough to disinherit them.

(c) Delusions [Kotke-note case]

(d) Hallucinations.

Breeden v. Stone, p. 171 – Did Breeden suffer from drugs, hallucinations, etc. In that case, there was a copy of his hand-written will.

In re: Honigman, p. 178-179.

[Various Note Cases]

3. Substituted Judgment Rule.


A. Tortious Interference with Inheritance – go to Probate Court – file a Will Contest – contesting the validity of the will. [Challenge = “No Contest” provision, included in many wills, says if you contest the will, you are disinherited.] Many people think they go to civil court, but it belongs in probate court. Munn Note Case (2010) = No cause of action in Tort (Civil court) – must be brought in Probate Court. Beckwith Note Case (2012) = Says there IS an action in Civil Court for an interference with inheritance ONLY if there is no available remedy in Probate Court. Beckwith had no action in probate because the fraud was perpetrated on him, Beckwith, not the decedent. [Beckwith, gay lover, had been lied to about what he would inherit.]

1. In General: a) Reasonable Expectancy by alleged injured party [Cabral note case]

b) Interference-Intentional, negligent, mistaken

c) Causation – but for the interference the expectancy would have occurred

d) Damages – monies left over

2. Interference by:

a) Duress.

b) Menace.

c) Fraud.

d) Undue influence.

e) Mistake

f) Also: Defamation, forgery, suppression of existing will, alteration

3. Effect on execution or revocation-Inducement or prevention

4. Jurisdiction- Probate , Civil or Bankruptcy Court.

a) May file claim of interference in probate or civil court but may not file in both

b) May also file in bankruptcy court

B. Duress – Civil Code 1569. (California Civil Codes are students’ responsibility)

1. Unlawful confinement of the person, or spouse of the person, or the ancestor of decedent, or adopted child of such person, OR

2. Unlawful detention of the property of any such person, OR

3. Confinement of such person, lawful in form, but fraudulently obtained or fraudulently made unjustly harassing or oppressive.

C. Menace – Civil Code 1570.

1. Threat of unlawful or violent injury to the property or person or character of a person

a) Of duress as specified in previous section

b) Of unlawful and violent injury to the person or property of any such person as is specified in the last section, OR

c) Of injury to the character of any such person