Capacity, Intent, and Mistake Flashcards
What a will can do
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
What is a will
revocable written instrument effective only on the testators death
Codicil - defined
supplement to a will that adds alters partially revokes a will partially or fully confirms an earlier will by republication
What a codicil may not do
completely revoke a will that exists
may partially revoke and replace single provisions
testator
person who makes a will or codicil
Executor
personal representative of decedents estate
appointed by the will
responsible for carrying out will and protecting the estate
administrator
representative of a testate estate not named by will
or of any intestate estate
beneficiaries
person named in a will
may be virtually any person or legal entity
may not leave property outright to animals
Negative Will
valid testamentary instrument that does nothing but disinherit someone
if property passes via intestate succession, the person named is treated as predeceasing the testator
non-probate property
any property passes to a successor on the owners death
life insurance
payable on death accounts
real property in joint tenancy
pensions
Probate property
any NON probate property
passes via terms of will or intestate succession
What is the interest created by a will
mere expectancy
is ambulatory - changed any time before testator dies
Requirements for creation of a will
capacity
intent
follow testamentary formalities -
capacity
18 years old - sound mind when formalities are applied - execution
minors will is invalid
even if subsequently affirming VERBALLY after attaining age of majority
Legal test for capacity
at time of testamentary act, testator understands
- nature and extent of property
- natural objects of his bounty
- nature of testamentary act and dispositions made
Standard for Testamentary Capacity
lower than required for most legal acts
only getting married requires less capacity
incompetent due to drugs or dimentia
valid will if executed during a lucid moment
Rebuttable presumption of competence when
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
Insane Delusion
false belief with no factual basis
devise or entire will affected by delusion, it is invalid
distinguish from mistake, mistake not invalidated
Burden of proof for insane delusion
individual alleging delusion makes out prima facie case
burden shifts to person claiming there is no insane delusion and will is valid
Testamentary intent requirement
acts reflect true and voluntary intent
genuine
present
non-conditional
undue influence
execution or revocation of a will under such influence is invalid
free will must be overborne and does not reflect the testators intent
undue influence factors
sick old men cannot survive
Susceptibility to undue influence Opportunity of 3rd party Motive Causation - affects testamentary scheme Substitution of testators will with influencer
Things that will not constitute undue influence
solicitation
suggestion
advising
otherwise seeking a testamentary disposition
burden of proving undue influence
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
Confidential relationship defined
people in a relationship where they are unnaturally trusting
not able to defend themselves from influence
parent child
attorney client
priest parishoner
Putnam Scrutiny
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
Attorney drafts will and is named as executor
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
Fraud in the Inducement - T is deceived as to facts used in making will
Elements (3)
- testator deceived
- by misrepresentation
- made with intent to induce a testamentary act
Fraudulent Execution - deceived as to type of document signed or contents
will invalid - lack of testamentary intent
Cure available for testamentary fraud
- invalidate the will or affected part of the will
2. probate the will and impose a constructive trust
Constructive Trust
equitable remedy
property passes to named beneficiary
person ordered to transfer property to intended beneficiary.
lasts long enough to transfer property to intended beneficiary
recitals in an instrument
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
Sham Will
Purported Will
lacks requisite intent when made
made in jest or to persuade another of his affection
use of Extrinsic evidence on issue of genuine intent
circumstances surrounding execution including statements may be introduced to show lack of genuine intent
Present Intent
document intended to be immediately operational
non-conditional intent
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
Will Contest
proceeding where someone objects to probate of a will or enforcement of a particular provision.
may also challenge requirements for a valid will
Standing to Contest a Will
challenger has a pecuniary stake in the outcome
“No Contest” Clause
clause meant to dissuade challengers.
enforceable regardless whether there is probable cause to challenge
What will not violate no contest clause
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
Successful Challenge to validity of entire will results in
document, including no-contest clause is a nullity
