Capacity, Intent, and Mistake

Question 0

What a will can do

Answer 0

dispose of property at death
state how property is not to be disposed of
exercises a power of the testator
appoint executor
directs treatment of remains
revokes partially or entirely prior testamentary document

Question 1

What is a will

Answer 1

revocable written instrument effective only on the testators death

Question 2

Codicil - defined

Answer 2

supplement to a will that
adds
alters
partially revokes a will 
partially or fully confirms an earlier will by republication

Question 3

What a codicil may not do

Answer 3

completely revoke a will that exists

may partially revoke and replace single provisions

Question 4

testator

Answer 4

person who makes a will or codicil

Question 5

Executor

Answer 5

personal representative of decedents estate
appointed by the will
responsible for carrying out will and protecting the estate

Question 6

administrator

Answer 6

representative of a testate estate not named by will

or of any intestate estate

Question 7

beneficiaries

Answer 7

person named in a will
may be virtually any person or legal entity

may not leave property outright to animals

Question 8

Negative Will

Answer 8

valid testamentary instrument that does nothing but disinherit someone

if property passes via intestate succession, the person named is treated as predeceasing the testator

Question 9

non-probate property

Answer 9

any property passes to a successor on the owners death

life insurance
payable on death accounts
real property in joint tenancy
pensions

Question 10

Probate property

Answer 10

any NON probate property

passes via terms of will or intestate succession

Question 11

What is the interest created by a will

Answer 11

mere expectancy

is ambulatory - changed any time before testator dies

Question 12

Requirements for creation of a will

Answer 12

capacity
intent
follow testamentary formalities -

Question 13

capacity

Answer 13

18 years old - sound mind when formalities are applied - execution

minors will is invalid
even if subsequently affirming VERBALLY after attaining age of majority

Question 14

Legal test for capacity

Answer 14

at time of testamentary act, testator understands

1. nature and extent of property
2. natural objects of his bounty
3. nature of testamentary act and dispositions made

Question 15

Standard for Testamentary Capacity

Answer 15

lower than required for most legal acts

only getting married requires less capacity

Question 16

incompetent due to drugs or dimentia

Answer 16

valid will if executed during a lucid moment

Question 17

Rebuttable presumption of competence when

Answer 17

will appears valid on its face when executed

burden on challenger to overcome presumption

evidence of conduct before and after execution, including statements, admissible to determine competence at the time the will is made

Question 18

Insane Delusion

Answer 18

false belief with no factual basis

devise or entire will affected by delusion, it is invalid

distinguish from mistake, mistake not invalidated

Question 19

Burden of proof for insane delusion

Answer 19

individual alleging delusion makes out prima facie case

burden shifts to person claiming there is no insane delusion and will is valid

Question 20

Testamentary intent requirement

Answer 20

acts reflect true and voluntary intent
genuine
present
non-conditional

Question 21

undue influence

Answer 21

execution or revocation of a will under such influence is invalid

free will must be overborne and does not reflect the testators intent

Question 22

undue influence factors

sick old men cannot survive

Answer 22

Susceptibility to undue influence
Opportunity of 3rd party
Motive
Causation - affects testamentary scheme
Substitution of testators will with influencer

Question 23

Things that will not constitute undue influence

Answer 23

solicitation
suggestion
advising
otherwise seeking a testamentary disposition

Question 24

burden of proving undue influence

Answer 24

ordinarily on contestant

presumption of undue influence arises when a confidential relationship existed between testator and party allegedly had undue influence when the will was drafted

Question 25

Confidential relationship defined

Answer 25

people in a relationship where they are unnaturally trusting
not able to defend themselves from influence

parent child
attorney client
priest parishoner

Question 26

Putnam Scrutiny

Answer 26

surrogates court reviews bequest to attorney who drafts a will without request of a party.

will assess relationship
look at nature and size of bequest
other provisions in current and prior wills
attorney will have to explain situation and how there was no undue influence

Question 27

Attorney drafts will and is named as executor

Answer 27

explain executor duties
entitled to be paid
may earn legal fees for any legal work

acknowledged by client in writing
failure to do so results in executor fees being cut in half

Question 28

Fraud in the Inducement - T is deceived as to facts used in making will
Elements (3)

Answer 28

1. testator deceived
2. by misrepresentation
3. made with intent to induce a testamentary act

Question 29

Fraudulent Execution - deceived as to type of document signed or contents

Answer 29

will invalid - lack of testamentary intent

Question 30

Cure available for testamentary fraud

Answer 30

1. invalidate the will or affected part of the will

2. probate the will and impose a constructive trust

Question 31

Constructive Trust

Answer 31

equitable remedy
property passes to named beneficiary
person ordered to transfer property to intended beneficiary.

lasts long enough to transfer property to intended beneficiary

Question 32

recitals in an instrument

Answer 32

create rebuttable presumption
writing signed by testator intended to be his will

rebutted by evidence writing intended
for purpose other than to dispose of his property

Question 33

Sham Will

Answer 33

Purported Will
lacks requisite intent when made
made in jest or to persuade another of his affection

Question 34

use of Extrinsic evidence on issue of genuine intent

Answer 34

circumstances surrounding execution including statements may be introduced to show lack of genuine intent

Question 35

Present Intent

Answer 35

document intended to be immediately operational

Question 36

non-conditional intent

Answer 36

effectiveness can be made expressly conditional
on occurrence or non-occurrence of a specified event or condition.

extrinsic evidence is not permitted to show a will that is unconditional on its face, is actually conditional

Question 37

Will Contest

Answer 37

proceeding where someone objects to probate of a will or enforcement of a particular provision.

may also challenge requirements for a valid will

Question 38

Standing to Contest a Will

Answer 38

challenger has a pecuniary stake in the outcome

Question 39

“No Contest” Clause

Answer 39

clause meant to dissuade challengers.

enforceable regardless whether there is probable cause to challenge

Question 40

What will not violate no contest clause

Answer 40

contest to show forgery
prior revocation based on probable cause
on behalf of minor or incompetent
objection to jurisdiction
request for disclosure of document
refusal to join in petition to probate or execute consent
demand to examine parties related to preparation
surviving spouse exercise of right of election
suit for construction of a will

Question 41

Successful Challenge to validity of entire will results in

Answer 41

document, including no-contest clause is a nullity