CAS Bar Wills Trusts and Estates 2 — Questions and Answers
Question 1: Under California intestate succession, if a decedent dies leaving a surviving spouse and two children from a prior marriage, what share of the decedent's separate property does the surviving spouse receive?
- All of it
- One-half
- One-third (Correct answer)
- Two-thirds
Correct answer: One-third
Under California Probate Code §6401, when a decedent leaves a spouse and two or more children, the surviving spouse takes one-third of the decedent's separate property.
Question 2: California's anti-lapse statute (Probate Code §21110) substitutes the descendants of a predeceased beneficiary. To which predeceased beneficiary would this statute apply?
- A longtime family friend named in the will
- A business partner named as a legatee
- The testator's sibling named as a beneficiary (Correct answer)
- A neighbor who received a specific bequest
Correct answer: The testator's sibling named as a beneficiary
California's anti-lapse statute applies only to transferees who are relatives of the transferor, so the testator's sibling qualifies but friends, neighbors, and business partners do not.
Question 3: A testator executes a valid will in 2020 while single. She marries for the first time in 2023 and dies in 2025 without amending her will. What is the surviving spouse's right under California law?
- The entire will is revoked by operation of law upon marriage
- The spouse receives an intestate share as a pretermitted spouse unless the will shows intent to omit (Correct answer)
- The spouse receives nothing because the will was valid when executed
- The will is revoked only as to assets acquired after the marriage
Correct answer: The spouse receives an intestate share as a pretermitted spouse unless the will shows intent to omit
Under California Probate Code §21610, a spouse who is not mentioned in a will executed before the marriage is entitled to an intestate share as a pretermitted spouse, unless the omission was intentional.
Question 4: Which of the following satisfies the requirements for a valid California holographic will?
- The entire document is typed with two witnesses signing
- Material provisions are printed but the testator signs and dates in handwriting
- The material provisions and the signature are in the testator's handwriting (Correct answer)
- The document is entirely handwritten but witnessed by one person
Correct answer: The material provisions and the signature are in the testator's handwriting
Under California Probate Code §6111, a holographic will is valid if the signature and the material provisions are in the testator's handwriting; witnesses are not required.
Question 5: To establish lack of testamentary capacity, a will contestant must prove the testator did not understand which of the following at the time of execution?
- The nature of the testamentary act, the extent of the property, the natural objects of bounty, and the nature of the testamentary plan (Correct answer)
- The tax consequences of the dispositions made in the will
- The legal definitions of 'devise,' 'bequest,' and 'legacy'
- The identities of every beneficiary named in the will by full legal name
Correct answer: The nature of the testamentary act, the extent of the property, the natural objects of bounty, and the nature of the testamentary plan
Testamentary capacity requires that the testator understand the nature of the act, the extent of their property, who the natural objects of their bounty are, and the nature of the testamentary plan being made.
Question 6: A testator physically destroys her 2019 will and executes a new will in 2023. The 2023 will is later set aside because it was procured by undue influence. What is the result?
- The 2019 will is automatically revived because the 2023 will was invalid
- Both wills are ineffective and the estate passes by intestacy (Correct answer)
- The 2023 will is partially enforced to the extent not influenced
- The 2019 will controls because the undue influence negates all later acts
Correct answer: Both wills are ineffective and the estate passes by intestacy
In California, a will revoked by physical destruction cannot be revived by the invalidity of a later will; because the 2019 will was validly revoked, the estate passes by intestacy.
Question 7: The doctrine of dependent relative revocation (DRR) may allow a court to disregard a testator's revocation of a will when:
- The testator lacked mental capacity at the time of revocation
- The revocation was premised on a mistake of fact or law and the testator would not have revoked absent that mistake (Correct answer)
- The testator died within 30 days of revoking the will
- The revocation was accomplished by oral statement rather than a physical act
Correct answer: The revocation was premised on a mistake of fact or law and the testator would not have revoked absent that mistake
DRR treats a revocation as conditional and ineffective when it was based on a mistaken assumption, and the testator would not have revoked the will had the mistake not existed.
CAS Bar Wills Trusts and Estates 2
Under California intestate succession, if a decedent dies leaving a surviving spouse and two children from a prior marriage, what share of the decedent's separate property does the surviving spouse receive?