Challenges Flashcards
1
Q
Will challenges are known as
A
will contests
2
Q
When a will is a product of what, does the will fail to express the testators true intent and should be denied probate
A
- undue influence,
- fraud,
- or duress
3
Q
If a will is a product of Undue Influence, Fraud, or Duress
Then the will fails to what
A
express the testators true intent and should be denied probate
4
Q
Person who challenges a will
A
“Contestant” or “caveator”
5
Q
Person who asserts the wills validity is the
A
“proponet”
6
Q
Contestant can object to a will on grounds if it
A
fails to meet the requirement of will validity
7
Q
A will fails to meet the requirement of will validity if
A
- not validly executed
- testator lacked capacity (general or testamentary)
8
Q
Doctrine of undue influence
A
A situation where someone exerted so much inappropriate influence over the testator that the resulting will expressed the influencers intent and not the testators
9
Q
4 elements of undue influences
A
1) The testator must be a person suseptible to the influence,
2) The alledged influence must have a oppertunity to exert the influence upon the testator
3) The alledged influencer must have a disposition to be exert the influence
4) There must be testamentary plan or bequest resulting from influence
10
Q
Generally, the burden lies with the —- to create a presumption of undue influence
A
challenger
11
Q
A challenger creates a presumption of undue influence by showing what 2 things
A
1) Confidential relationship between the influencer and the decedent existed, AND
2) There were 1 or more suspicious circumstances present
12
Q
Some jurisdictions: if there is a “confidential relationship” with the testator, a
A
presumption is raised of undue influence that the proponet must then rebute
13
Q
confidential relationship
A
one which a person relies on and trusts another to make decisions and do what is best for that person
14
Q
A confidential relationship can be
4 types of relationships
A
- fiduciary- like an attourney
- where individual relies on judgement of other like a doctor or religious leader
- an informal personal relationship between friends or neighbors or family members
- when two people do not deal with eachother on equal terms either because of overmastering dominance on one side, or weakness, dependance, or justifiable trust, on the other.
15
Q
8 considerations to determine if circumstances are suspicious
prof. said to remember these
A
- donor in weakened condition and susceptable
- extent the person participated in getting the will/will substitute
- If the donor relies on advice from disinterested advisors
- If will was made in secracy or haste
- If fonors attitude had changed because of relationship with person
- There are discrepancys between new and previous wills
- There was a continuity of purpose indicating a settled intent in the legislation of his or her property
- If the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.
16
Q
suspicious circumstances
example of If the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.
A
If the disposition abruptly and without apparent reason disinherited a faithful and deserving family member
17
Q
confidential relationship between spouses
A
courts hesitate to use confidential relationship between spouses to trigger presumption of undue influence
18
Q
Two things that needs to be true for testamentary Intent
A
- Testator was thinking about distribution of property at death
- Testator meant for the writing to be a will (not personal notes, not draft, not anything ut a last will)
19
Q
Testamentary intent when dying testate
A
court will try to give affect to testamentary intent
20
Q
Testamentary intent when dying intestate
A
presumed intent, actual intent not relevant
21
Q
Statute of frauds: a will disposing of real property…
A
be in writing, signed by testator and three witnesses
22
Q
4 Functions of having will requirements
A
- evidentiary
- intent
- prevent fraud
- cautionary ritual function (knows its serious)
23
Q
4 purposes of will functions
A
- protection
- evidentiary function
- efficency (serious business)
- Ritual function (form and structure that people understand)
24
Q
Self proving affidavit prevents the need of
A
witnesses appearing in court to attest to the validity of their signatures
25
three traditional challenges
1. duress
2. fraud
3. undue influence
26
duress arises when
physical coersion is used to exert influence
27
A donative transfer is produced by duress if the
wrongdoer threatened to perform or did a wrongul act that coerced the doner into making (or failing to make) a donative transfer that the donor would not otherwise have made
28
3 elements of fraud
1. a delibrate misrepresentation
2. made with the intent to induce the disposition
3. resulting in the testator making a disposition she otherwise would not have been made
29
What happens in the case of fraud
The testator..
the testator freely makes a new estate plan but does so as a result of having been misled.
30
2 varieties of fraud in the context of wills
1. fraud in the inducement
2. fraud in the execution
31
Fraud in the inducement
Involves a misrepresentation that causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers favor
32
fraud in the execution
Involves a misrepresentiation about the charater or contents of instument signed by the testator, which does not in fact carry out the testators intent
33
3 elements of Insane delusion
1. Suffers from a belief contrary to reality,
2. refuses to change that belief even when confronted with evidence to the contrary, and
3. disposition is the result of that belief
34
A testator can have delusions and can have a valid will as long as
the beliefs did not cause the dispositions in the will
35
A testator can suffer from insane delusion and still have
testamentary capacity
36
you have testamentary capacity when you know
who your familiy members are and what your estate is
37
Tortious Interference with Inheritance
One who by fraud, duress, or other tortious means intentionally prevents another from recieving from a 3rd person an inheritance or gift that he would have otherwise have recieved is subject to liability to the other for loss of inheritance or gift.
38
Inheritance
any devise or bequest that would otherswise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate sucession
39
Plaintiffs have sucessfully asserted tortious interference with an iheritance where third parties have encouraged testators
1) to revise their wills or trusts,
2) to retitle property, or
3) to change payable on death contract to eliminate heirs, or have interferred with the execution of a will that would leave property to an heir
40
# tortious interference with an iheritance
The party challenging the survivors right to the proceeds of the joint account must show
by clear and convincing evidence that the decedent did not intent the survivor to recieve the proceeds of the acocunt without the benefit of a presumption of undue influence
41
# tortious interference with an iheritance
Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless
there is clear and convincing evidence of a different intention at the time the account is created
42
What happens when a will if found to be invalid, depends on what two things
1. whether there was a earlier will
2. whether the later invalidated will disposed of the entire estate or was just an amendment (or codicil) of only part of the estate.
43
# A will is found to be invalid
If there was no earlier valid will, what happens?
the estate, or the challenged bequest, wll pass under intestancy laws
44
Testamentary freedom
each of us ought to be free to dispose of our private property as we wish
45
# Proof of burden
proponet
prove that the will is valid
46
# proof of burden
contestant
prove that the will is invalid
47
A constestant shifts burden to the proponet by *proving* what when raising a presumption of undue influence?
1) confidential relationship
2) suspicious circumstances
48
With undue influence between spouses what do you look for?
1. power dynamic
2. suspicious circumstances
49
# Confidential relationship
parent/child (and other family ) relationships are not automaically confidential unless
they are relying on them for something
50
A definition of a will includes a codicil and any testamentary instument that:
1. merely appoints an executor
2. revokes or revises another will
3. nominaes a guardian
4. expressly excludes or limits the right of an individual or class to succed to property of the decedent
51
Duress Elements
1. Existance of threats or Coersion
2. Coersion
3. Lack of Free Will
52
Duress element: existance of threats or coersion
threats, force, pressure, and left testator with no reasonable alternative but to comply with demands or person exerting duress
53
Duress element: Coersion
Duress directly caused the testator to make/alter a will, testator wouldnt have done
54
Duress element: Lack of free will
Free will overcome by the duress
55
Duress: not need...
1. to be in phsycial harm
2.not need to be imminent danger
56
Many forms of duress
1. psychological pressure
2. threats of physical harm
57
# Duress
Issue turns on if pressure was sufficient to overcome free will
totality of the circumstances, effect of coersion on testators ability to make voluntary decisions ( not necessiarily the nature of the threat itself.)
58
# Duress
Nature of pressure- different form undue influence
undue influence is more subtle form of coersion relying on relationship of trust, dependancy, or authority to manipulate control over time
59
# Evidence: Duress
showing that
testator was subjected to specific threat or harm
60
# Evidenece: Undue influence
showing that
a relationship was exploited to manipulate decisions
61
A situation of undue influeance could esculate to
duress
62
Fraud elements
1. Deliberate misrepresentation
2. Intent to induce the disposition (means on purpose)
3. Resulting in testator making a disposition otherwise wouldn't have made
63
Types of fraud
1. Fraud in the inducement
2. Fraud in the execution
64
Fraud in the inducement
A misrepresentation of something to get them to change estate plan
65
Fraud in the execution
get them to sign something, not telling them that it is a will. (misrep about the document itself)
66
Insane delusion elements
1. suffers from a belief contrary to reality
2. Refuses to chanfe that belief when confronted with evidence to the contrary;
3. Disposition is the result of that belief
67
# Testamentary capacity
is when toy know
1. what your doing
2. who your faimily is
3. what your estate is
68
# Insane Delusion
Would need to show
that the testator saw evidence that it was wrong and still made the decision
69
Insane delusion is not
a belief that no one questioned him on
70
# Tortious Interference with inheritance
can include
other then a will. ex. deed, bank account
71
Tortious Interference with inheritance elements
1. existance of expectancy
2. intentional interference with the expectancy through tortious conduct
3. causation
4. damages
72
will contestants likely assume they will
do better either under intestacy laws or under an earlier will than they will under the will they are contesting.
73
The scenarios most likely to foretell a future will contest include but are not limited to the following:
* A blended family (a second or third marriage with children from either spouse’s prior marriage)
* An elderly person who is forgetful, has early stages of dementia or Alzheimer’s, but whom you believe has testamentary capacity
* Unequal bequests to people on the same generational line (i.e., siblings)
* A history of family discord
* One or more siblings bringing a parent in to execute a will when other siblings are not present
74
Express disinheritance provisions
intentionally not leaving anything to someone
75
Express disinheritance provisions needs
evidence of the intent, show that not because of ill will
76
# Incorporation by refrence and republication by codicil
a testator may incorperate an extrinsic document into a will provided:
1. the document in existance at the time provided
2. the refrence in the will clearly identifies it or renders it capable of identification by extrinsic proof
77
# Incorporation by refrence and republication by codicil
The execution of a codicil has the effect of
republishing the will which it modiefies
78
# Incorporation by refrence and republication by codicil
Although an informal document is not in existance when the will refering to it is executed,
A later republication of the will by codicil will
satisfy the "existing document" rule and will incorporate it by refrence provided the testamentary instruments sufficiently identify it.
79
# Incorporation by refrence and republication by codicil
Identification of informal document
it is enough that the descriptive words and extrinsic circumstances combine to produce a reasonable certainty that the document in question is the one referred to by the testator in the will
80
# Incorporation by refrence and republication by codicil
def of an informal document
An extrinsic document referred to in a will
81
# UPC 2-510 incorporation by refrence
A writing in existance when a will is executed may be incorperated by refrence if the
language of the will manifests this intent and describes the writing sufficiently to permit its identification
82
UPC 2-510 incorporation by refrence elimininates
the req to refer to the document as being in existance at the time of the wills execution
83
# UPC 2-510 incorporation by refrence
Companion doctrine
to incorperation by refrence clled "integration" looks at what pages compromize the will
84
What techniques ensures pages of a will are incorperated
binding or sewing
85
# UPC
binding "seperate writings"
recognizes binding seperate writings that
1) lack will formalities
2) dispose soley of tangible personal property
regardless of when these writings are prepared and signed
86
UPC 513 Sperate writing ident. devise of certain types tang. pers.prop
* Whether or not the provisions relating to holographic wills apply,
* a will may refer to a written statement
* or a list to dispose of items of tangible personal property
* not otherwise specifically disposed of by the will
* other then money
87
# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop
To be admissible under this section as evidence of the intended disposition
* the writing must be signed by the testator
* and must describe the items
* and the describe the devisees
* with reasonable certainty
88
# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop
the writing may be referred to as
one to be in existance at the time of the testators death
or
after the execution of the will
89
# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop
The writing may be altered
by the testator after its preparation
90
# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop
significance of the writing
may be a writing that has no significance apart from its effect on the dispositions made by the will
