Answers to Winter 2017
Winter 2017 Bar Question 1
Mary was a widow with two adult children, Amy and Bob.
In 2010, Mary bought Gamma and Delta stock. She then sat at her computer and typed the following:
This is my will. I leave the house to Amy and my stock to Bob. The rest, they can split.
Mary printed two copies of the document. She signed and dated both copies in the presence of her best friend, Carol, and her neighbor, Ned. Carol had been fully advised of the contents and signed both copies. Although Ned had no idea as to the bequests, he declared that he was honored to be a witness and signed his name under Mary’s and Carol’s signatures on both copies. Mary placed one copy in her safe deposit box.
In 2014, Mary married John. She soon decided to prepare a new will. She deleted the old document from her computer and tore up one copy. She forgot, however, about the other copy in her safe deposit box.
On her corporate stationery with her business logo emblazoned on it, Mary wrote:
I leave John my Gamma stock. My Delta stock, I leave to Bob. Amy is to get the house.
Mary signed the document. She neither dated the document nor designated a recipient for her remaining property.
In 2015, Mary sold her Delta stock and used the proceeds to buy Tango stock. In 2016, Mary died, survived by John, Amy, and Bob.
Mary’s estate consists of Gamma stock, Tango stock, her house, and $200,000 in cash in separate property funds.
What rights, if any, do Amy, Bob, and John have in the assets in Mary’s estate? Discuss.
Answer according to California law.
All questions © 2017 California State Bar Exam. All rights reserved
Will Q 1 W 2017
2010 –Mary’s first will—valid?
Here, M’s will is signed and dated. The two witnesses were present when M signed it.
Ned had no idea as to the will’s bequests. The witness does not need to know the details of the will, only that the testator intends it to be her will. Here, although Ned did not know the provisions, he was aware he was witnessing M sign her will. This is sufficient.
Copies. When both documents are signed as if they are originals, each of them is the original will.
Therefore, the 2010 will is valid.
2014 M marries John and tears up first will--—revocation?
A will can be revoked by physical act accompanied by the testator’s intent to revoke. Here, M tore up one of two copies of her will. The question is whether a court will find proof of M’s intent sufficient to revoke the will.
Here, M tore of the copy of the will she had in her possession and deleted the will from her computer. She had recently married, and wrote a new will shortly after destroying the will. It appears that M intended to revoke her first will when she tore it up. However, she forgot there was a duplicate in her safe deposit box.
Since M is not alive to speak to her intent and since she was apparently alone when she tort up the will, the court can only weigh the extrinsic evidence. The original of M’s first will was in her safe deposit box. Because most people keep important documents in a safe place, this is strong evidence that the first will was still in effect. Also, M’s second will did not expressly revoke the first will.
Conclusion: The extrinsic evidence supports a conclusion that M did not intend to revoke her first will.
2014 M’s handwritten document—valid will?
Handwritten. We are assuming that Mary handwrote the will on her stationery
Undated. A holographic will need not be dated to be valid. But, f it cannot be established extrinsically when it was dated, its provisions that are inconsistent with an existing will are invalid.
Here, Mary includes a bequest to John, whom she just married. This is sufficient to establish the date of the second will as after the first will.
Therefore Mary’s handwritten document is valid as a holographic will, dated after the first will.
Revocation of first will?
In M’ second will, M contradicted this bequest. She specified Bob was to receive the Delta stock, and John was to receive the Gamma stock. This contradicts the first will, and the first will is impliedly revoked by the second will.
The second will does not discuss the residue. Therefore, the residuary clause in the first will would still be in effect.
The court would read the two wills as a single instrument, giving effect to the second will only when it contradicts the first. The result is:
Delta stock not in M’s estate—Ademption?
Ademption? Ademption operates to void a specific gift when the property in a bequest is no longer owned by the testator at the time of his death. Here, M sold the Delta stock and with the proceeds purchased Tango stock. If the court finds the Delta bequest adeemed, Bob would not take the bequest to Delta stock.
When property is not passed by specific bequest, it falls into the residuary. Here, M did not leave the Tango stock to anyone. Therefore, it would be part of the residue and would be split by M and B.
Exceptions to ademption. Courts can save a specific gift if it effectuates the intent of the testator.
Demonstrative gift. A demonstrative gift is one where the testator intended to give the economic value of specific gift rather than the actual property. If the court can be persuaded that M intended to give B the value of the stock, rather than “Delta” stock, then the gift can be saved from ademption and Bob would take the Tango stock instead.
Here, M’s first will gave all her stock to Bob, lumped together as “my stock.” This appears to treat the stock as fungible. Therefore it can be seen as a demonstrative gift.
Tracing. A specific bequest can be saved from ademption if the testator changed the form of the property while continuing to have the intent that the beneficiary take the bequest.
Here, M continues to leave stock to Bob, even though the name of the company has changed. Also, M sold Delta and with the proceeds bought Tango. It appears these were part of a sequential transaction. Simply put, in Mary’s mind, Delta stock became Tango stock.
For these reasons, a court would find that M intended to continue benefitting Bob by giving him the value of the stock.
A, B and J’s rights.
Bob. Bob probably takes the Tango stock, since it was a demonstrative and not a specific gift and because the value of the Delta stock can be traced to the Tango stock. Bob will also get half the residue, or $100,000
John. M’s husband is provided for in the second will. Therefore, he can make no claim for an omitted spouse statutory share. He receives the Gamma stock.
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