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Legal Writing

This guide assists first-year law students with the CREAC format used in legal writing.

Overarching Rule

THIS OVERARCHING RULE NEEDS AN EDIT:

Pursuant to California law, there are two methods, one statutory and one judicial, where an individual who has not been legally adopted can participate in intestate succession. Cal. Prob. Code §§ 6454-6455 (West 1993). The first method enables intestate succession through a foster parent or stepparent if the relationship between the parent and child meets two requirements: 1) the relationship began during a child’s minority and continued throughout their lifetime; and 2) the child would have been adopted by the parent if not for some legal barrier. Id. § 6454. The Court has held that the legal barrier to adoption must have persisted until the death of the parent. Estate of Furia, 103 Cal. Rptr. 2d 384, 387 (Cal. Ct. App. 2002). 

Here, Mr. Simpson cannot inherit from the estate of Mrs. Sweeney through Probate Code Section 6454 because a legal barrier preventing adoption did not persist until Mrs. Sweeney’s death. Mrs. Sweeney’s husband, Sam Sweeney, did not believe in adoption and withheld his consent to the adoption. This legal barrier ended two years prior to the death of Mrs. Sweeney when Mr. Sweeney died in a car accident. After that point, nothing was legally preventing Mrs. Sweeney from adopting up until her death. Therefore, the statutory remedy is not applicable to Mr. Simpson and the judicial doctrine of equitable adoption must be examined.

Equitable adoption “allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption typically was promised or contemplated, but never performed, to share in inheritance of the [parent’s] property.” In re Estate of Ford, 82 P.3d 747, 753 (Cal. 2004). This doctrine is utilized not to compensate a child for services rendered, but rather to carry out the intent a decedent without a will would likely have had and is grounded in considerations of fairness and equity for the child. Id. at 755. However, this doctrine does not grant individuals full rights of inheritance and does “not change [an individual’s] status as heir; instead, it supports the fiction that adoption has transpired, and grants the equitable child a portion of intestate decedent's estate. Estate of Furia, 126 Cal. Rptr. 2d at 384. 

Under California common law, the doctrine of equitable adoption has two elements: 1) the expression of intent to adopt the child; and 2) the formation of a familial relationship between the foster child and custodial parent. Estate of Ford, 82 P.3d at 753. Both elements need to be established by clear and convincing evidence. Id

 

THE EDIT WILL CORRECT THE FOLLOWING:

  1. Conclusion: the legal writer forgets to start the rule section with a conclusory sentence that shows (in a because statement) the application of the relevant parts of the rule to the determinative facts.
  2. Relevant part of the rule: the legal writer skips over the relevant part of the rule and its purpose, and improperly starts the rule section with the dismissal sentence or dismissal paragraph.
  3. Purpose sentence: the legal writer overstates the purpose.
  4. Dismissal sentence/paragraph: the legal writer spends too much time discussing the inapplicable code section, and discusses it before the relevant part of the rule, when it should have been discussed after.
  5. Roadmap sentence: the legal writer forgets the roadmap sentence at the very end of the overarching rule.

 

AFTER THE EDIT, THE OVERARCHING RULE IS NOW ACCOMPLISHED:

It is likely that Alan Simpson will inherit from Rebecca’s estate as her equitably adopted child because she stated a desire to adopt him and they mutually recognized a parent-child relationship between them. The doctrine of equitable adoption allows a person to whom adoption was promised or contemplated, but never performed, and who was accepted and treated as a natural child to share in a claim for inheritance from a foster parent. In re Estate of Ford, 82 P.3d 747, 755 (Cal. 2004). To establish equitable adoption, a claimant must prove by clear and convincing evidence the following two elements: 1) the existence of an agreement or intent to adopt and 2) subsequent objective conduct indicating a mutual recognition of a parent-child-relationship. Id. at 747.  Equitable adoption does not grant individuals full rights of inheritance and does not change an individual's status as heir; rather, in considerations of fairness and equity for the child, equitable adoption supports the fiction that adoption has transpired, and grants the equitable child a portion of the intestate decedent's estate. Id. at 755; Estate of Furia, 126 Cal. Rptr. 2d at 384.

California codified the common law doctrine of equitable adoption: under California Probate Code section 6454 (West 2014), a claimant must prove that a foster parent or stepparent would have adopted the claimant but for a legal barrier.  Here, Alan is precluded from inheriting under § 6454 because the legal barrier that prevented Rebecca from adopting Alan—Sam's refusal to agree to the adoption—was removed when Sam had died two years before Rebecca's death.  California Probate Code section 6455 provides that § 6454 does not limit or alter application of the common law doctrine of equitable adoption. Accordingly, this memorandum will show that under common law Alan will likely inherit from Rebecca's estate as her equitably adopted son because she expressed an intent to adopt him on multiple occasions, to several different people, and she and Alan formed a mutually recognized close, familial relationship.

 

THE OVERARCHING RULE IS ACCOMPLISHED FOR THESE REASONS:

  1. The conclusion sentence effectively uses a because statement to apply the relevant parts of the rule to the determinative facts (red sentence)
  2. The rule statement starts broad and with each sentence, funnels down to the most narrow part of the rule--the two elements of the common law doctrine of equitable adoption, which the legal writer will analyze in two nested-CREACs, one for each element (blue sentences)
  3. The purpose statement clearly and concisely explains the reason for the rule's existence and/or its policy considerations (green sentence)
  4. The dismissal sentences clearly and concisely dismiss the discussion and application of another law that would have been discovered in research, but ultimately would not be relevant because of the absence of a determinative fact (purple sentences) (Note: a dismissal sentence might also dismiss the discussion and application of relevant parts of a rule that are not being contested.)
  5. The roadmap sentence mirrors the structure and substance of the conclusion sentence but gives a bit more explanation of the determinative facts that trigger the relevant part of the rule (orange sentence)