7. Contests

Question 1

What is required for Contestant to have standing?

Answer 1

1) File contest within 6 months after probate admission

2) Contestant has interest + adversely affected
- NOT creditor/trustee/executor

3) File notice to legatees + heirs
4) Burden of proof => Contestant

Question 2

What is required to contest a will based on testamentary capacity?

Answer 2

1) Under 18 years of age (at time of execution)

2) NO mental capacity (contract standard)
- Old/Ill/Failing memory/Alcoholic/Drug addict
- NOT insanity adjudication/guardian appointment/insane delusion

3) NOT able to understand (shortly before/at time/shortly after execution);
- Nature of act
- Nature of property
- Identity of natural objects
- Orderly disposition formulation

Question 3

What is required to contest a will based on undue influence?

Answer 3

Requirements

1) Exertion of influence (not mere opportunity)
2) Overpower T’s free will + mind (not mere pleading/opportunity)
3) NO disposition but for influence

Presumption

1) Confidential relationship (T + Ben) (Reliance on Ben)
2) Ben active in drafting will
3) Will appears unnatural + favours Ben (some states)

Question 4

What is required to contest a will based on fraud?

Answer 4

Wilfully deceived T

• Will contents
• Extrinsic evidence

Fraudulently preventing T from making will
- Constructive trust can be imposed instead (some states)

Question 5

What is required to contest a will based on mistake?

Answer 5

Execution (signing wrong will)

• No relief (some states)
• Relief (obvious mistake) (some states)

Fraudulent inducement

• On face of will
• Mistakenly omitting child

Will contents (extrinsic evidence)

• NOT incorrect/omitted provisions
• NOT contradict plain clear language

Ambiguity

• Latent (clear language misapplied) => Cure latent with extrinsic evidence
• Patent (NOT clear language) => Cure patent with extrinsic evidence (modern view)

Question 6

Can mistakes in wills be reformed?

Answer 6

UPC

1) Mistake of fact/law re terms/T’s intent
2) Clear + convincing evidence

Question 7

What is the ‘in terrorem’ clause?

Answer 7

1) Ben contests will validity
- NOT court’s jurisdiction/executor appointment

2) Ben cannot contest if he loses
- Forfeits interest if NO probable cause (UPC + most states)
- Forfeits interest (some states)