residuary clause in California

2022Paragraph 4.2 of the trust states that upon Sheila’s death, the balance of the trust, if any, shall be distributed to Elizabeth’s heirs, “their identities and respective shares to be determined according to the laws of California then in effect.” Because the transfer to Sheila of the trust’s interest in the Sacramento house did not occur, the trust interest in the house became part of the trust residue. (§ 21111; see O’Connor v. Murphy (1905) 147 Cal. 148, 153 [intent to include all ineffectual bequests in the residuary clause is presumed; an intent to exclude must be express or shown by clear

1958(Estate of O’Brien, 74 Cal.App.2d 405, 407 [ 168 P.2d 432 ].) In the construction of wills, that interpretation which will avoid intestacy is to be sought (Le Breton v. Cook, 107 Cal. 410, 416 [ 40 P. 552 ]), and a residuary clause is always to receive “a broad and liberal interpretation, with a view of preventing intestacy as to any portion of the estate” (O’Connor v. Murphy, 147 Cal. 148, 153 [ 81 P. 406 ]).

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

2019(See, e.g., Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1607 [noting California courts often find the Restatement persuasive].) “For the purpose of determining what happens to the share of a residuary devisee who fails to survive the testator, a residuary clause that devises the residue to two or more persons is treated as if it is a class gift, even if the devise is not in the form of a class gift.

2018(See, e.g., Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586 , 1607, 91 Cal.Rptr.3d 50 [noting California courts often find the Restatement persuasive].) "For the purpose of determining what happens to the share of a residuary devisee who fails to survive the testator, a residuary clause that devises the residue to two or more persons is treated as if it is a class gift, even if the devise is not in the form of a class gift.

1966Code, § 102; Estate of Rollins, 163 Cal.App.2d 225, 227 [ 328 P.2d 1005 ].) Although we are inclined to view this as a “make weight” argument in support of the trial court’s findings, it was held, in Estate of Meininger, 237 Cal.App.2d 102 , at page 105 [ 46 Cal.Rptr. 609 ] : “When a decedent leaves a will, the implication arises that intestacy was not intended. [Citations.] A presumption is raised that the testator intended to dispose of all his property, and this presumption is much strengthened if a residuary clause is included. [Citation.] Such clauses are to receive a liberal interpretati

1966Code, § 102; Estate of Rollins, 163 Cal.App.2d 225, 227 [ 328 P.2d 1005 ].) Although we are inclined to view this as a “make weight” argument in support of the trial court’s findings, it was held, in Estate of Meininger, 237 Cal.App.2d 102 , at page 105 [ 46 Cal.Rptr. 609 ] : “When a decedent leaves a will, the implication arises that intestacy was not intended. [Citations.] A presumption is raised that the testator intended to dispose of all his property, and this presumption is much strengthened if a residuary clause is included. [Citation.] Such clauses are to receive a liberal interpretati

1978(Lynch v. Surprise Valley Lodge No. 235 (1972) 26 Cal.App.3d 265, 270 [ 103 Cal.Rptr. 1 ]; Bierl v. McMahon (1969) 270 Cal.App.2d 97, 101 [ 75 Cal.Rptr. 473 ].) Appellant was not in existence at the termination of the trust and therefore could not take its designated percentage share of the testator's residuary estate The testator expressly required the institutional entities under the residuary clause to be in existence at the time of the termination of the trust in order to take their designated percentage share.

1978(Lynch v. Surprise Valley Lodge No. 235 (1972) 26 Cal.App.3d 265, 270 [ 103 Cal.Rptr. 1 ]; Bierl v. McMahon (1969) 270 Cal.App.2d 97, 101 [ 75 Cal.Rptr. 473 ].) Appellant was not in existence at the termination of the trust and therefore could not take its designated percentage share of the testator's residuary estate The testator expressly required the institutional entities under the residuary clause to be in existence at the time of the termination of the trust in order to take their designated percentage share.

1978(Lynch v. Surprise Valley Lodge No. 235 (1972) 26 Cal.App.3d 265, 270 [ 103 Cal.Rptr. 1 ]; Bierl v. McMahon (1969) 270 Cal.App.2d 97, 101 [ 75 Cal.Rptr. 473 ].) Appellant was not in existence at the termination of the trust and therefore could not take its designated percentage share of the testator's residuary estate The testator expressly required the institutional entities under the residuary clause to be in existence at the time of the termination of the trust in order to take their designated percentage share.

1978(Lynch v. Surprise Valley Lodge No. 235 (1972) 26 Cal.App.3d 265, 270 [ 103 Cal.Rptr. 1 ]; Bierl v. McMahon (1969) 270 Cal.App.2d 97, 101 [ 75 Cal.Rptr. 473 ].) Appellant was not in existence at the termination of the trust and therefore could not take its designated percentage share of the testator's residuary estate The testator expressly required the institutional entities under the residuary clause to be in existence at the time of the termination of the trust in order to take their designated percentage share.

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, 101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]); from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holographic

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962Code, §101; Estate of Iburg, 196 Cal. 333, 334 [ 238 P. 74 ]; Estate of Cross, 163 Cal. 778, 781 [ 127 P. 70 ]; In re Ladd, 94 Cal. 670, 674 [ 30 P. 99 ]) ; from its failure to consider the later instrument, i.e., the holographic will, as a unit of expression; and from its consequent conclusion that the residuary clause in the holographic will referred to the residuum of the estate after distribution of the specific bequests and devises designated in both that will and the former will, rather than to the property remaining after distribution of the specific bequests designated in the holograph

1962(Estate of Kuttler, supra, p. 202.) While this problem concerns itself with the possible application to the community property, the amount of which is *365 not one of the issues before us, nevertheless, we have to consider whether or not the testatrix by this will was disposing of all of her property or just her separate property or portions of the community property. [10] As stated above, we do not think the term "personal property" can be intended to include a residual bequest of the property, while "all my own property" or "all my personal property" may be properly considered as a residuary

1962(Estate of Kuttler, supra, p. 202.) While this problem concerns itself with the possible application to the community property, the amount of which is *365 not one of the issues before us, nevertheless, we have to consider whether or not the testatrix by this will was disposing of all of her property or just her separate property or portions of the community property. [10] As stated above, we do not think the term "personal property" can be intended to include a residual bequest of the property, while "all my own property" or "all my personal property" may be properly considered as a residuary

1965(Estate of Olson, 144 Cal. App.2d 694 [ 301 P.2d 501 ]; Estate of Taylor, 119 Cal.App. 2d 574 [ 259 P.2d 1014 ].) A presumption is raised that the testator intended to dispose of all his property, and this presumption is much strengthened if a residuary clause is included.

1965(Estate of Olson, 144 Cal. App.2d 694 [ 301 P.2d 501 ]; Estate of Taylor, 119 Cal.App. 2d 574 [ 259 P.2d 1014 ].) A presumption is raised that the testator intended to dispose of all his property, and this presumption is much strengthened if a residuary clause is included.

2004Standard of Review Appellant seeks de novo review. ( Estate of Hermon (1995) 39 Cal.App.4th 1525, 1529 , 46 Cal.Rptr.2d 577 [de novo review applied where neither party introduced extrinsic evidence concerning the meaning of language used by the testator].) Peddy argues the standard of review should be abuse of discretion, because there were disputed facts and extrinsic evidence on the contested issue of the testator's intent (e.g., a declaration of Jones's fiancée, who said Jones's sister said he would not have wanted the residuary clause to stand). [3] Since the trial court stated it decided

2004Standard of Review Appellant seeks de novo review. ( Estate of Hermon (1995) 39 Cal.App.4th 1525, 1529 , 46 Cal.Rptr.2d 577 [de novo review applied where neither party introduced extrinsic evidence concerning the meaning of language used by the testator].) Peddy argues the standard of review should be abuse of discretion, because there were disputed facts and extrinsic evidence on the contested issue of the testator's intent (e.g., a declaration of Jones's fiancée, who said Jones's sister said he would not have wanted the residuary clause to stand). [3] Since the trial court stated it decided

1988In Estate of Newsome (1967) 248 Cal.App.2d 712, 714 [ 56 Cal.Rptr. 874 ], the court made the following statement: “Ademption is one of the ways in which a devise or bequest lapses [citation]; is the extinction or withdrawal of the gift by some act of the testator clearly indicating an intent to revoke such; may be effected, as to a specific devise or bequest, by the testator’s disposition of the property devised or bequeathed and attendant circumstances which prevent it, or its identifiable proceeds from passing by the will, from which an intention that the gift shall fail is presumed; but is

1988In Estate of Newsome (1967) 248 Cal.App.2d 712, 714 [ 56 Cal.Rptr. 874 ], the court made the following statement: “Ademption is one of the ways in which a devise or bequest lapses [citation]; is the extinction or withdrawal of the gift by some act of the testator clearly indicating an intent to revoke such; may be effected, as to a specific devise or bequest, by the testator’s disposition of the property devised or bequeathed and attendant circumstances which prevent it, or its identifiable proceeds from passing by the will, from which an intention that the gift shall fail is presumed; but is

1978"Many other events other than testamentary incapacity may preclude a review of a will after the death of a legatee; for example, lack of knowledge of the death of a legatee; inability because of other illness or nonadjudicated mental incapacity, or the testator may simply have forgotten the terms of the will." ( Estate of Roberts, supra, 9 Cal. App.3d at p. 752 .) Here, the record contains no evidence bearing upon the state of the testatrix' health, either mental or physical, during the years following her brother's death.

1978“Many other events other than testamentary incapacity may preclude a review of a will after the death of a legatee; for example, lack of knowledge of the death of a legatee; inability because of other illness or nonadjudicated mental incapacity, or the testator may simply have forgotten the terms of the will.” (Estate of Roberts, supra, 9 Cal.App.3d at p. 752.) Here, the record contains no evidence bearing upon the state of the testatrix’ health, either mental or physical, during the years following her brother’s death.

1972(Estate of Webster, 43 Cal.App.2d 6, 15-16 [ 110 P.2d 81 , 111 P.2d 355 ]; Estate of Stauffer, 142 Cal.App.2d 35, 41 [ 297 P.2d 1029 ]; Estate of Carson, 184 Cal. 437, 441 [ 194 P. 5 , 17 A.L.R. 239 ]; see Estate of Harkleroad, 62 Cal.App.2d 60, 61, 65 [ 144 P.2d 88 ]; Estate of Beckley, 233 Cal.App.2d 341, 348 [ 43 Cal.Rptr. 649 ].) In Webster, it was held that “The verdict of the jury finding that the appellants used undue influence in reference fi> the residuary clause of the will would not necessarily be any determination that they used undue influence in respect to the provisions of the w

1972(Estate of Webster, 43 Cal.App.2d 6, 15-16 [ 110 P.2d 81 , 111 P.2d 355 ]; Estate of Stauffer, 142 Cal.App.2d 35, 41 [ 297 P.2d 1029 ]; Estate of Carson, 184 Cal. 437, 441 [ 194 P. 5 , 17 A.L.R. 239 ]; see Estate of Harkleroad, 62 Cal.App.2d 60, 61, 65 [ 144 P.2d 88 ]; Estate of Beckley, 233 Cal.App.2d 341, 348 [ 43 Cal.Rptr. 649 ].) In Webster, it was held that “The verdict of the jury finding that the appellants used undue influence in reference fi> the residuary clause of the will would not necessarily be any determination that they used undue influence in respect to the provisions of the w