Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Frank, Wynn, grandnieces Lynn and Kim, Cole, and Norm have the following rights in Tom’s estate: 1. Frank will probably take both gifts reduced potentially by Cole’s pretermitted share and Wynn’s CP in the stock. Formalities of Wills/Revocation Under California law, both typewritten wills and holographic wills are recognized. The California Probate Code requires that excepting holographic wills, a will must be in writing and must be executed and attested according to the Statute of Wills. Holographic wills (handwritten and unattested) are valid if the signature and the material provisions are in the handwriting of the testator; no date is required but is helpful. When there is no date on the holographic will and an issue is raised whether the provisions of the holographic will control or whether the provisions of another will control, the holographic will may be considered invalid to the extent it is inconsistent with the other will. The gifts to Frank are classified as a general bequest ($10,000) and a specific bequest (“my shares in Beta Corp”). The California Probate Code provides that a will must be burned, torn, cancelled, obliterated, or destroyed in order to effectuate a revocation by physical act. Most states, including California, permit partial as well as total revocation of will by a physical act. The intent to revoke only part of a will may be shown by extrinsic evidence and may be inferred from the nature of the act performed. However, an increase by physical act is not permitted. Where partial revocation is permitted, such an act, without due attestation, would fail. Here, Tom made a bequest of $10,000 to his friend Frank. Later he crossed out the $10,000 amount, a partial revocation, and wrote $12,000. Extrinsic evidence would be allowed to determine Tom’s intent as to whether Tom’s handwritten and dated change from the original $10,000 bequest should be recognized as a holographic material provision in this will. The specific bequest of the Beta Corp stock should be valid so long as there is an offset to the community because it was purchased with community property. Therefore, Frank is entitled to $12,000 and one half of the Beta Corp stock. He will probably take all of the shares in the stock unless Wynn makes a widow’s election. 2. Wynn will take the residue of the estate minus a potential offset for Cole’s intestate share. Community Property/Widow’s Election Under California’s community property system, each spouse owns a present, existing one-half interest in the community property of the husband and wife. Community property includes the earnings and acquisitions from earnings of both spouses during marriage acquired while domiciled in California � it does not include property acquired by gift, devise, or inheritance, which is separate property of the donee spouse. On the death of one of the spouse’s, one-half of the community property is already owned by the surviving spouse and only the decedent spouse’s one-half is subject to his testamentary disposition. Here Tom owned mostly separate property at the time of his death except the shares of the Beta stock valued at 1.00 per share at the time of his death. The stock was earned with community property. While Wynn could take a widow’s election because Tom attempted to dispose of all of the community property (Beta stock) — an election between taking her half of the community property or taking what was given to her by the will, this is highly unlikely given that she would receive much more under the will and she would have to renounce all of the benefits under the will. Therefore, Wynn will take the residue of the estate offset potentially only by Cole’s intestate share. 3. Cole will take a share of the estate as if Tom had died intestate. Pretermitted Children Under California law, for decedents dying on Jan. 1, 1998, or thereafter, in order to satisfy an omitted child’s share, the share will first be taken from the decedent’s estate not passing by will or trust, then from all the beneficiaries of the decedent’s testamentary instruments pro rata. While a testator may intentionally choose to disinherit his descendants, California provides protection for children (not issue) born or adopted after execution of the will. A child does not receive a share of the estate if any of the following are established: 1) the testator’s failure to provide for the child in the will was intentional; 2) when the will was executed, the testator had one or more children and devised substantially all the estate to the other parent of the omitted child; or 3) the testator provided for the child by transfer outside of the will, and the intention that the transfer be in lieu of a testamentary provision is shown by statements of the testator or the from the amount of the transfer or by other evidence. The order of abatement of gifts under the will in order for an omitted child to take his/her share is as follows: 1) the share will first be taken from the testator’s estate not disposed of by will, if any; 2) if that is not sufficient, then the share shall be taken from all will beneficiaries in proportion to the value of the property they received under the will; 3) if the obvious intent of the testator would be defeated by the rules set out above, a specific devise may be exempted from the apportionment and a different apportionment that is consistent with the testator’s intent may be adopted. Here, Cole was born after the execution of the will and no other provisions were made for him nor does he fit into any of the exceptions set out supra. Therefore, Cole is an omitted child and will take his proportionate share of the estate which he would have received if the testator had died intestate. 4. Norm, and Matt’s children, Lynn and Kim, will probably each share $ 80, 000 as class members reduced potentially by Cole’s pretermitted share. Ambiguities/Class Gifts Under California law, ambiguities in the will can be explained by extrinsic evidence. California has rejected the distinction between patent and latent ambiguities, i.e., extrinsic evidence is allowed to show what the testator meant by the words used in the will. If the gift is characterized as a class gift by the court, the share that would have gone to a class member who predeceased the testator passes to the other class members who are alive at the time of the testator’s death. A gift is a class gift if the testator intended that the number of devisees or legatees could fluctuate (increase or decrease) between the time he executed the will and his death. Issue, however, means lineal descendants and includes any generation of descendants such as children, grandchildren, and great-grandchildren. Descendants of a living descendant are excluded as takers. The anti-lapse statute applies in California so that descendants of the deceased class member (not the other class members) take the deceased legatee’s share unless the legatee’s death occurred before the execution of the will. Here, in Article 2, Tom left “� $80,000 to my sister Sue’s issue.” Sue, who predeceased Tom, had two sons, Norm and Matt, when Tom executed the will. Matt died before the testator, Tom, and left two children, Lynn and Kim. Most courts today will admit evidence of the testator’s oral declarations at or about the time of execution of his will to show his state of mind from which his intentions can be inferred. While the plain meaning rule comes into play when courts consider extrinsic evidence, the ambiguity in Tom’s will makes it unclear as to whether “issue” was limited to Norm and Matt or whether after-born children should take a share of the $80,000 equally or whether each issue should take $80,000 separately. Therefore, unless there is evidence of Tom’s intent that is contra to the $80,000 being shared equally by Sue’s issue, Norm, Lynn and Kim will split the $80,000, reduced only by Cole’s potential intestate share of the estate. This answer provided by passyourbar.com, 800-852-3926.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.