capacity and contests: duress and fraud Flashcards
what is duress
Duress occurs if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made
latham v father devine (the cult case)
Decedent left a will that gave almost her whole estate to defendant father divine, a leader of a religious cult, and to two corporate defendants in some way connected to that cult
On several occasions decedent expressed a desire and a determination to revoke the will
Prior to her death she had attorneys draft a new will in which the ps were named as legatees
Ds conspired to kill and did kill the deceased by means of surgical operation performed by a doctor engaged by the ds without the consent or knowledge of any of the relatives of the deceased
the will was probated by the cult leader
The heirs and father settled a will contest at probate
So how do we remedy this wrong doing for the cousins who would have benefited had the new will been executed?
Constructive trust !
That is the remedy
Father did wrongful conduct so he will just hold the property and have to hand it over
the heirs also have to turn over their share; Unjust enrichment doesn’t have to come about via wrongdoing (it can, but need not be)
what is fraud
if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not have otherwise made
Someone affirmatively lying to decision maker that alters estate plan, we shouldn’t be looking at it
how does fraud compare to an insane delusion situation
Kinda a parallel to insane delusion except ID isn’t based on lies, but mistake
When mistake is based on an AFFIRMATIVE LIE, more akin to fraud
what are the two types of fraud claims
fraud in the execution: Occurs when a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent
fraud in the inducement:When a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor
how is a claim of fraud in the inducement different from a claim of undue influence
Fraud= testator RETAINS her free agency but does so as a result of having been misled
Undue influence = the testator makes a new estate plan because of influence that overcomes the testator’s free will
what is tortious interference?
The restatement of torts recognizes intentional interference with an expected inheritance or gift as a valid cause of action
The plaintiff must prove that the interference involved tortious conduct
Under the cases such conduct qualifies as tortious for the interfere with inheritance tort
schilling v herrerra
Following a diagnosis of renal failure, Mignonne Helen Schilling received care from Maria Herrera, who induced Mignonne to change her will, making Herrera the sole beneficiary. Edward Schilling, Mignonne’s brother and original sole heir, sued Herrera for intentional interference with an expectancy of inheritance after discovering the changes post-probate.
what is the contestants argument/why cant he bring undue influence? what is another available remedy/cause of action?
he argues that there was undue influence – power of atty was the confidential relationship, and the suspicious circumstance was his mother’s susceptibility
He cant bring UI because he wasn’t at probate to contest
So he brings a torts claim
what is the gen rule about bringing a tortious interference claim
If you can do your claim in probate, stick to traditional avenue, if not, court will hear the claim in tort
what four things need to be pleaded for the tortious interfernce claim
The existence of an expectancy;
Intentional interference with the expectancy through tortious conduct;
Causation;
And damages
what is the upc rule on notice of probate
the personal rep should give notice of probate to the decdent’s surviving spouse, beneficiaries, the trustee of any trusts and person who may be entitled to exempt property
