Wills and Trusts Answer

The first overlying issue this fact pattern presents is whether Bathsheba is entitled to the $200,000 devise the subject of Provision 1 of the Will.

What was the status of the $200,000 the subject of Provision 1 after the execution of the codicil? In California, a validly executed codicil revokes that portion of the underlying will to which it refers. It does not revoke the underlying will as a whole. The facts tell us the Codicil revoking Provision 1 of the Will was properly executed by Andrea, thus revoking her devise to Bathsheba. At that point in time, the $200,000 reverted back to the residuary of the estate. Had Andrea died at that time, Caliber College would be the proper devisee of the $200,000 as Provision 4 of the Will devised the residue of the estate to Caliber College.

What was the status of the $200,000 devise after Andrea’s death and the subsequent production of the Will and the Codicil with the writing declaring it “null and void” on the back of the Codicil? If the writing is a valid revocation, does it revive Provision 1 of the Will? California law has not spoken on the issue of the writing as a revocation as of yet. At the common law, revocation of a will or codicil may occur by the act of writing since an act of writing can be destructive. However, the common law requires that said writing must be done on the face of the will or codicil. If the common law were applied to the fact pattern presented, revocation of the Codicil by writing would be invalid since it did not occur on the face of the document but rather on the back.

Being so, the $200,000 would still revert to the residue of the estate and thus be devised to Caliber College. The Uniform Probate Code, reciting the Modern Trend, states a writing can be made anywhere on the will or codicil in order to be effective. Addressing the issue of revival, in California a will can only be revived if there is intent to revive the first will by revoking the second evidenced by an act showing there was a revocation of the Codicil. Applying these rules, the revocation of the Codicil by Andrea’s writing on the back would be considered a valid act of revocation.

Andrea’s statements on New Year’s Eve that Bathsheba “would be provided for” might be shown to be intent to revoke the codicil evidenced by the writing on the back of the codicil in her handwriting with her signature. Being so Provision 1 would be considered to be revived and Bathsheba would be the recipient of the $200,000 devise.

Does Caliber College have any recourse if Provision 1 is deemed revived and Bathsheba receives the $200,000? In California, the theory of Tortious Interference with Expectancy allows a party who would have been a devisee of a gift under a will but for the wrongful conduct of the third party, to sue that third party. To accomplish this the plaintiff must show the third party committed fraud or had undue influence upon the testator. In California, the Presumption Approach can be used to evidence undue influence. The plaintiff must show a confidential relationship existed between the testator and the third party, such as where the testator confides in or trusts the third party. The third party must have been active in the procurement or execution of the will, such as helping to determine what the elements will be. Finally the wrongdoer must have benefited unduly from the will. The California Rule asks how much the person is taking relative to what their relationship to the testator was and whether the devise seems fair.

If Caliber College were to sue Bathsheba under this theory, it would apply the facts as follows, Bathsheba undoubtedly had a confidential relationship with Andrea, she had reconciled with her and after they had talked together Andrea had announced Bathsheba would be provided for, and who knows whether Andrea had the capacity to understand what she was saying as it was New Year’s Eve as she and Bathsheba were at a bar, presumably drinking. Bathsheba may have been able to influence Andrea to revive Provision 1 by revoking the Codicil because of this, thus helping determine the elements of the Will. Finally, Bathsheba, a friend, was to be awarded a devise of $200,000, something that might seem rather unfair to an objective observer. While this argument seems valid, it is likely the revocation would be upheld and Bathsheba would not be held liable for Tortious Interference given Andrea’s statement, along with the fact the original terms of the Will had already been written before there was a reconciliation between Andrea and Bathsheba. Combine that with absence of any proof the handwriting on the Codicil was forged by Bathsheba or any other type of fraud had been committed and Provision 1 should be considered revived, no matter how much money Bathsheba receives.

The second overlying issue presented by the fact pattern as it is presented is whether the conversion of stock from Microhard to Banana has any effect on Provision 3 of Andrea’s Will and the way in which it will be distributed.
In California, when a gift is designated as a devise but that gift is no longer available when the testator passes away when the Will is submitted to probate, the doctrine of Ademption should be applied. Ademption applies a burden upon the proposed beneficiary to find the gift; the theory being if a testator really wants to make a certain gift that testator will execute a codicil to that effect. If the proposed beneficiary cannot find the gift or no codicil has been executed by the testator evidencing intent to make the gift to the beneficiary in another manner, Ademption is considered to have occurred, or in other words, the gift was withdrawn by the testator, and the proposed beneficiary does not receive that certain gift under the provision. One exception to Ademption applies when the gift changes in form. However, if the gift is found to have changed in substance the gift is considered adeemed.

The stock from Provision 3 is still the only stock that exists in Andrea’s estate, at least as far as can be told from the facts as they have been presented. The stocks have not been changed to something completely different in substance such as several cars, or another home, or several different types of jewelry. The only way the stock has been changed is by name, therefore the form of the gift, which is the name on the stock has changed, but the substance of the gift, that of being the entire amount of stock that was Microhard and is now Banana has not. Based upon this the gift of the stock to Naomi would still be valid.

How will the gift of stock be distributed now that Provision 3 has escaped the doctrine of Ademption and the intestate Naomi has predeceased Andrea? In California when a beneficiary of a will predeceases the testator, the gift to the beneficiary is considered lapsed and therefore void and would then revert to the residuary of the estate. The Anti-Lapse Doctrine in California states that a predeceasing beneficiary’s devise may be saved from lapsing back into the estate if the predeceased beneficiary was “sufficiently” related to the testator. “Sufficient” relation would include siblings to the deceased. However, the predeceased beneficiary must also be survived by issue who also survive the testator. If all thee elements are met, the issue of the predeceased beneficiary will receive the gift that beneficiary would have received on a per capita basis at the first level of relation. If at that level one of the issue of has predeceased the beneficiary and leaves issue, the share that issue would have received will be split evenly among their own issue.

Clearly the gift of stock to Naomi in Provision 3 is a lapsed gift under California law as Naomi predeceased Andrea. The Anti-Lapse Doctrine would save that gift from being declared void as Naomi, sister to Andrea, was “sufficiently” related to Andrea and Naomi also left issue of her own. Naomi had one living issue, Boaz, and one issue who predeceased her, Ruth whose issue is Frick and Frack, upon her death. The gift of Provision 3 has been saved by the anti-lapse statute and the first level of relation would be the level at which Boaz and Ruth had been born. Since Ruth is survived by Frick and Frack, one half of the Banana stock will go to Boaz and the other half will be divided among Frick and Frack as the issue of Ruth, who would have received a one half share had she survived Naomi. Therefore, Frick and Frack will each receive one quarter of the Banana stock.

Having addressed the major issues presented by the fact pattern, what about Caliber College and, although he was not specifically mentioned, Andrea’s brother Barry who is to receive the house on Temple Road according to Provision 2?

If Barry survived Andrea then he will receive the house on Temple Road per Provision 2 in fee simple absolute. If he predeceases Andrea and is not survived by issue then Provision 2 would be declared a void gift as discussed earlier under the Doctrine of Lapsed Gifts and would revert to the residuary of the estate, and thus Caliber College would receive the house in fee simple absolute. If Barry predeceases Andrea and is survived by issue, then

Provision 2 would be saved under the Anti-Lapse Doctrine and the issue of Barry would receive the house either in fee simple absolute if there is one issue or as joint tenants with equal property interests if there are more than one issue.

Caliber College will receive the residuary of the estate under Provision 4 of the Will. However, the residuary is not likely to include any of the gifts from Provisions 1, 2 or 3.