Capacity and Contents Flashcards
Capacity to Make a Will Includes?
Legal Capacity and Testamentary Capacity
Testamentary Capacity - General Rule
Testator must be capable of knowing and understanding in a general way:
- the nature and extent of his or her property (what do you have?);
- the natural objects of his or her bounty (to whom doyou want to give?);
- the disposition that he or she is making of that property (for real?); and
- must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property.”
Testamentary Capacity - capacity vs actual knowledge.
the test for testamentary capacity is one of capability, not actual knowledge (e.g., getting a fact in will wrong would otherwise invalidate the will).
Testamentary Capacity - irregularities, eccentricities, and idiosyncrasies
Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities or departures from the normal unless they directly bear upon and have influenced the testamentary act.
Testamentary Capcity -
- Lucid Interval
- Effect of Conservatorship
- Professional Responsibility of Attorney
- Lucid Interval – a person who is mentally incapacitated only some of the time can make a valid will or intervevos gift during a period of lucidity.
- Affect of Conservatorship – a person under a conservatorship can usually make a valid will.
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Professional Responsibility - A lawyer may not draft a will for a person the lawyer believes to be incompetent.
- If anticipating uncertainty, lawyer should preserve evidence regarding client’s capacity.
Burden of Proof for Testamentary Capacity
- Majority and UPC 3-407 - once proponent shows due execution of the will, the contestant bears the ultimate burden of persuation to show lack of capacity.
- Minority –
- presumption of capacity
- rebuttal evidence of some incapacity shifts ultimate burden to proponent.
Insane Delusion -
- Definition
- Requirements
- Effect
- False Belief
Insane Delusion – A delusion is a false conception of reality. But an Insane delusion is a false conception of reality to which the testator adheres against all evidence and reason to the contrary.
Requirements – the contestant must show that:
- The testator labored under an insane delusion; and
- Causation - The will or some part thereof was a product of the insane delusion. (e.g., changed will re insane delusion that family member was dead).
Effect - entire will or disposition fails for lack of capacity. The property goes via intestacy or constructive trust for the benefit of the rightful heirs.
Insane Delusion vs. False Belief (i.e. Mistake) –
- A Testator who is suffering from an insane delusion will not change his or her belief even when confronted with evidence to the contrary.
- However, a testator operating under a false belief will change the testator’s opinion once presented with convincing evidence.
What is the relationship between insane delusion and the requirements for mental capacity?
Insane delusion and mental capacity tests are independent of each other in scope and purpose. However, their application is not mutually exclusive.
Undue Influence -
- Majority Rule
- A donative transfer is procured by undue influence if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made. R3P (2008)
Undue Influence - who holds the burden of proof?
Majority Rule -
- generally, contestant has burden of proving will was procured by undue influence.
- Once presumption of undue influence, burden to show no undue influence shifts to proponent.
- Examples:
- showing influencer acted in good faith throughout the transaction and grantor acted voluntarily and intelligently.
- Having independent legal counsel is a strong rebuttal.
- Examples:
Texas Rule – Texas doesn’t allow for presumption of undue influence. Contestant has burden the whole time
Undue Influence - Texas Rule
- Elements
- Burden of Proof
To prove undue influence, contestant must show:
- There was undue influence;
- The undue influence affected the testator’s dispostion under the will; and
- the testator wouldn’t have made the disposition but for the undue influence exerted.
The burden of proving undue influence is upon the party contesting its execution.
Can lawyer’s accept gifts in a will or solicit such gifts from a client?
Undue Influence – Many courts hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when closely related to the testator.
- Closely Related - varies by state.
- Texas – three degrees of consanguinity and employees (e.g., couldn’t have client give gift to paralegal).
MRPC 1.8(c) – lawyers can’t solicit substantial gifts from clients or prepare an instrument giving the lawyer a gift from the client unless client is a close relative.
- Should make sure client gets independent legal advice
No-Contest Clauses - Majority, Minority, and Texas Rule
- Majority/UPC Rule - unenforceable unless contestant lacked just cause.
- A handful of states do not enforce no-contest clauses at all.
- Texas - must be for cause and in good faith.
- Minority Rule - enforceable regardless of contestant’s good faith or just cause.
3.
Ante-Mortem (Living Probate)
Eight states (not including Texas) permit probate of a will during the testator’s life.
- Testator may institute proceeding to declare validity of the will.
- All beneficiaries must be made party to the action
Duress in Testamentary Transfer -
- Definition of Duress
- Remedy
Duress – “a donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful physical (e.g., threat or act of violence) act that coerced the donor into making a donative transfer that the donor would not have otherwise made
Remedy - Where a devisee or legatee under a will already executed prevents the testator by fraud, duress, or undue influence from revoking the will and executing a new will in favor of another or from making a codicil, so that the testator dies leaving the original will in force, the devisee or legatee holds the property thus required upon a constructive trust for the intended devisee or legatee.
