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Wills & Trusts > Challenges > Flashcards

Challenges Flashcards

1
Q

Will challenges are known as

A

will contests

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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
  1. undue influence,
  2. fraud,
  3. or duress
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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

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4
Q

Person who challenges a will

A

“Contestant” or “caveator”

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5
Q

Person who asserts the wills validity is the

A

“proponet”

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6
Q

Contestant can object to a will on grounds if it

A

fails to meet the requirement of will validity

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7
Q

A will fails to meet the requirement of will validity if

A
  1. not validly executed
  2. testator lacked capacity (general or testamentary)
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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

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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

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10
Q

Generally, the burden lies with the —- to create a presumption of undue influence

A

challenger

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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

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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

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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

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14
Q

A confidential relationship can be

4 types of relationships

A
  1. fiduciary- like an attourney
  2. where individual relies on judgement of other like a doctor or religious leader
  3. an informal personal relationship between friends or neighbors or family members
  4. 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.
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15
Q

8 considerations to determine if circumstances are suspicious

prof. said to remember these

A
  1. donor in weakened condition and susceptable
  2. extent the person participated in getting the will/will substitute
  3. If the donor relies on advice from disinterested advisors
  4. If will was made in secracy or haste
  5. If fonors attitude had changed because of relationship with person
  6. There are discrepancys between new and previous wills
  7. There was a continuity of purpose indicating a settled intent in the legislation of his or her property
  8. If the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.
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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

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17
Q

confidential relationship between spouses

A

courts hesitate to use confidential relationship between spouses to trigger presumption of undue influence

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18
Q

Two things that needs to be true for testamentary Intent

A
  1. Testator was thinking about distribution of property at death
  2. Testator meant for the writing to be a will (not personal notes, not draft, not anything ut a last will)
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19
Q

Testamentary intent when dying testate

A

court will try to give affect to testamentary intent

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20
Q

Testamentary intent when dying intestate

A

presumed intent, actual intent not relevant

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21
Q

Statute of frauds: a will disposing of real property…

A

be in writing, signed by testator and three witnesses

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22
Q

4 Functions of having will requirements

A
  1. evidentiary
  2. intent
  3. prevent fraud
  4. cautionary ritual function (knows its serious)
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23
Q

4 purposes of will functions

A
  1. protection
  2. evidentiary function
  3. efficency (serious business)
  4. Ritual function (form and structure that people understand)
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24
Q

Self proving affidavit prevents the need of

A

witnesses appearing in court to attest to the validity of their signatures

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25
Q

three traditional challenges

A
  1. duress
  2. fraud
  3. undue influence
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26
Q

duress arises when

A

physical coersion is used to exert influence

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27
Q

A donative transfer is produced by duress if the

A

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

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28
Q

3 elements of fraud

A
  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
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29
Q

What happens in the case of fraud

A

the testator freely makes a new estate plan but does so as a result of having been misled.

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30
Q

2 varieties of fraud in the context of wills

A
  1. fraud in the inducement
  2. fraud in the execution
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31
Q

Fraud in the inducement

A

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

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32
Q

fraud in the execution

A

Involves a misrepresentiation about the charater or contents of instument signed by the testator, which does not in fact carry out the testators intent

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33
Q

3 elements of Insane delusion

A
  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
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34
Q

A testator can have delusions and can have a valid will as long as

A

the beliefs did not cause the dispositions in the will

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35
Q

A testator can suffer from insane delusion and still have

A

testamentary capacity

36
Q

you have testamentary capacity when you know

A

who your familiy members are and what your estate is

37
Q

Tortious Interference with Inheritance

A

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
Q

Inheritance

A

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
Q

Plaintiffs have sucessfully asserted tortious interference with an iheritance where third parties have encouraged testators

A

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
Q

tortious interference with an iheritance

The party challenging the survivors right to the proceeds of the joint account must show

A

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
Q

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

A

there is clear and convincing evidence of a different intention at the time the account is created

42
Q

What happens when a will if found to be invalid, depends on what two things

A
  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
Q

A will is found to be invalid

If there was no earlier valid will, what happens?

A

the estate, or the challenged bequest, wll pass under intestancy laws

44
Q

Testamentary freedom

A

each of us ought to be free to dispose of our private property as we wish

45
Q

Proof of burden

proponet

A

prove that the will is valid

46
Q

proof of burden

contestant

A

prove that the will is invalid

47
Q

A constestant shifts burden to the proponet by proving what when raising a presumption of undue influence?

A

1) confidential relationship
2) suspicious circumstances

48
Q

With undue influence between spouses what do you look for?

A
  1. power dynamic
  2. suspicious circumstances
49
Q

Confidential relationship

parent/child (and other family ) relationships are not automaically confidential unless

A

they are relying on them for something

50
Q

A definition of a will includes a codicil and any testamentary instument that:

A
  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
Q

Duress Elements

A
  1. Existance of threats or Coersion
  2. Coersion
  3. Lack of Free Will
52
Q

Duress element: existance of threats or coersion

A

threats, force, pressure, and left testator with no reasonable alternative but to comply with demands or person exerting duress

53
Q

Duress element: Coersion

A

Duress directly caused the testator to make/alter a will, testator wouldnt have done

54
Q

Duress element: Lack of free will

A

Free will overcome by the duress

55
Q

Duress: not need…

A
  1. to be in phsycial harm
    2.not need to be imminent danger
56
Q

Many forms of duress

A
  1. psychological pressure
  2. threats of physical harm
57
Q

Duress

Issue turns on if pressure was sufficient to overcome free will

A

totality of the circumstances, effect of coersion on testators ability to make voluntary decisions ( not necessiarily the nature of the threat itself.)

58
Q

Duress

Nature of pressure- different form undue influence

A

undue influence is more subtle form of coersion relying on relationship of trust, dependancy, or authority to manipulate control over time

59
Q

Evidence: Duress

showing that

A

testator was subjected to specific threat or harm

60
Q

Evidenece: Undue influence

showing that

A

a relationship was exploited to manipulate decisions

61
Q

A situation of undue influeance could esculate to

A

duress

62
Q

Fraud elements

A
  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
Q

Types of fraud

A
  1. Fraud in the inducement
  2. Fraud in the execution
64
Q

Fraud in the inducement

A

A misrepresentation of something to get them to change estate plan

65
Q

Fraud in the execution

A

get them to sign something, not telling them that it is a will. (misrep about the document itself)

66
Q

Insane delusion elements

A
  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
Q

Testamentary capacity

is when toy know

A
  1. what your doing
  2. who your faimily is
  3. what your estate is
68
Q

Insane Delusion

Would need to show

A

that the testator saw evidence that it was wrong and still made the decision

69
Q

Insane delusion is not

A

a belief that no one questioned him on

70
Q

Tortious Interference with inheritance

can include

A

other then a will. ex. deed, bank account

71
Q

Tortious Interference with inheritance elements

A
  1. existance of expectancy
  2. intentional interference with the expectancy through tortious conduct
  3. causation
  4. damages
72
Q

will contestants likely assume they will

A

do better either under intestacy laws or under an earlier will than they will under the will they are contesting.

73
Q

The scenarios most likely to foretell a future will contest include but are not limited to the following:

A
  • 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
Q

Express disinheritance provisions

A

intentionally not leaving anything to someone

75
Q

Express disinheritance provisions needs

A

evidence of the intent, show that not because of ill will

76
Q

Incorporation by refrence and republication by codicil

a testator may incorperate an extrinsic document into a will provided:

A
  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
Q

Incorporation by refrence and republication by codicil

The execution of a codicil has the effect of

A

republishing the will which it modiefies

78
Q

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

A

satisfy the “existing document” rule and will incorporate it by refrence provided the testamentary instruments sufficiently identify it.

79
Q

Incorporation by refrence and republication by codicil

Identification of informal document

A

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
Q

Incorporation by refrence and republication by codicil

def of an informal document

A

An extrinsic document referred to in a will

81
Q

UPC 2-510 incorporation by refrence

A writing in existance when a will is executed may be incorperated by refrence if the

A

language of the will manifests this intent and describes the writing sufficiently to permit its identification

82
Q

UPC 2-510 incorporation by refrence elimininates

A

the req to refer to the document as being in existance at the time of the wills execution

83
Q

UPC 2-510 incorporation by refrence

Companion doctrine

A

to incorperation by refrence clled “integration” looks at what pages compromize the will

84
Q

What techniques ensures pages of a will are incorperated

A

binding or sewing

85
Q
A

Wills & Trusts (8 decks)

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