(2) Wills: Challenging the Validity of a Will

Question 1

Testamentary Capacity

Answer 1

To have sufficient capacity to execute a will, a testator must (1) be at least 18 years old; (2) understand the nature and extent of their property; and (3) understand the natural objects of their bounty (aka understand who they are giving their property to).

Question 2

Does appointment of a conservator prove lack of capacity?

Answer 2

NO, appointment of a conservator alone, doesn’t prove a lack of capacity.

Question 3

Interested Witness

Answer 3

A will is only valid if it is signed by the testator in the presence of two disinterested witnesses. Any gifts to an interested witness are presumed invalid. If an interested witness cannot overcome this presumption, they will only take their intestate share of the estate.

Question 4

Insane Delusion

Answer 4

Definition: An insane delusion when the testator has a false idea that is not supported by facts and the testator refuses to accept evidence contrary to their idea.

Rule: A will is invalid if it is the result of an insane delusion that caused an unnatural result.

Question 5

Fraud

Answer 5

A will is fraudulent if a person (1) intentionally made a misrepresentation; (2) of material fact; (3) in order to induce the testator to either sign the will or change the contents of the will; and (4) the testator did so.

Question 6

Undue Influence

Answer 6

Definition: Undue Influence occurs when a person exerts influence that overcomes a testator’s free will and judgement.

Rule: Undue influence is established when: (1) the testator had a weakness that made them susceptible to influence; (2) the wrongdoer had access to the testator and an opportunity to exert influence; (3) the wrongdoer actively participated in drafting the will; and (4) there is an unnatural unexpected result.
*The weakness can be mental, physical or financial.

Question 7

Common Law Presumptions

Undue Influence

Answer 7

Common law presumptions are established if (1) a confidential relationship existed between the testator and the wrongdoer; (2) the wrongdoer actively participated in drafting the will; and (3) there is an unnatural result.
*under common law the affected provision is invalid.

Question 8

CA Statutory Presumptions

Undue Influence

Answer 8

In CA, a statutory presumption of undue influence is established if the testator makes a donative transfer to (1) the person who drafted the will; (2) a care custodian of a testator who is a “dependent adult”; (3) a person in a fiduciary relationship with the testator; (4) a person who is a spouse, domestic partner, employee or related by blood to a person in one of the previous 3 circumstances; OR (5) a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest.
*under CA statutory presumptions the gift to the wrongdoer lapses.