Chapter 3 - Wills: Protecting Testamentary Intent

Question 1

What are the three main factors of protecting testamentary intent?

Answer 1

1. Donative testamentary intent — does the will express intent to dispose of property @ death?
2. Operative testamentary intent — did the decedent actually intend for the will to be legally effective?
3. Substantive testamentary intent — how should the words of the will be interpreted to carry out decedent’s intent?

Question 2

Must a will proponent attach a testator’s death certificate when offering a will for probate?

Answer 2

Generally, yes.

Question 3

What does ANIMUS TESTANDI mean? What is the standard?

Answer 3

The testator must intend (at the time of execution) for the document signed as a will to be his or her will.

STANDARD: the document must (by its own language) show on its face that it
1. purports to dispose of the testator’s property @ the time of death
2. intent must exist when instrument executed and must apply to the particular instrument produced as a will
3. Must be the instrument intended by the testator to be his or her final will
4. Testator must follow testamentary formalities, including the execution and attestation of the will

Question 4

The last paragraph of a love letter to a decedent’s wife states that it was his “last will and testament,” to appoint her as the primary beneficiary of “all I have and all I have worked for.”

Does this establish the decedent’s testamentary intent?

Answer 4

NO!

Estate of Hand (Ohio Ct. App. 2016) (the test is whether the instrument expresses the final testimony & purpose of the testator).

Question 5

A decedent leaves behind a short/homemade document that says: “Last Will and Testament of Steven R. Oerman… I hereby place Jeremy D. Keller in charge of my estate. His decision will be final in all matters of my estate.” Is this sufficient to show testamentary intent? See In Re: Steven R. Oerman, Deceased (Pa. Super. Ct. 2022).

Answer 5

Maybe, depending on the jurisdiction. The Oerman court said no bc in its view: the writing did not contain any language of a testamentary nature in… The language was stark and did not dispose of Oerman’s assets in any way or use any dispositive terms. I gave no direction to Keller on how to handle Oerman’s estate nor did it indicate what Oerman wanted to happen w/ his assets.

**Other courts have ruled that disposition is NOT an essential characteristic of a will.

**UPC §1-201(57) defines “will” to include codicil and any testamentary instrument that MERELY APPOINTS an EXECUTOR.

Question 6

What are the general statutory requirements of TESTAMENTARY CAPACITY?

Answer 6

UPC §2-501. Who May Make Will:

An 18+ year-old who is of SOUND MIND may make a will.

**Most statutes (including UPC are silent on what “sound mind” means.
** The definition is left to common law.

Question 7

What does the Restatement (Third) of Property require for MENTAL/TESTAMENTARY CAPACITY?

Answer 7

§8.1 Requirement of Mental Capacity

(A) A person must have mental capacity to make or revoke a DONATIVE TRANSFER.

(B) Testator/Donor must be capable of knowing and understanding (in a general way) the NATURE and EXTENT of her property, the NATURAL OBJECTS OF HER BOUNTY, and the DISPOSITION that he or she is making of that property, and must also be capable of RELATING THESE ELEMENTS TO ONE ANOTHER and FORMING AN ORDERLY DESIRE regarding the disposition of the property.

Question 8

How did the court in Harrison v. Rowan (C.C.D.N.J. 1820) define TESTAMENTARY CAPACITY?

Answer 8

The testator ought to be capable of making his will w/ (1) an understanding of the NATURE OF THE BIZ he is engaged in; (2) a RECOLLECTION OF THE PROPERTY he means to dispose of; (3) of the PERSONS WHO ARE THE OBJECT OF HIS BOUNTY; and (4) the MANNER IN WHICH IT WILL BE DISTRIBUTED between them.

**J. Washington’s test does NOT refer to “natural” objects of the testator’s bounty.

Question 9

Who are NATURAL OBJECTS in an INTESTACY context?

Answer 9

A. Those who will take in the absence of a will, his next of kin (Conn.)

B. Descendants, surviving spouse, and parents of the testator, who purely by reason of relationship, may be assumed to have had claims upon his bounty (Cal.)

C. Heirs, but exclude nephews, nieces, brothers, sisters, and other collateral heirs (N.D.)

D. Heirs, including cousins (App. Div.)

Question 10

Who are NATURAL OBJECTS in the RELATIONSHIP CONTEXT?

Answer 10

Include the testator’s CLOSEST FAMILY MEMBERS, who are NOT LIMITED to blood or adoptive relatives or those who would take by intestacy.

Restatement (Third) § 8.1, cmt. c

Question 11

Do courts assess memory or intelligence when analyzing TESTIMENTARY CAPACITY?

Answer 11

NO! Courts assess only MENTAL CAPABILITY, not memory or intelligence.

Question 12

How does TESTAMENTARY CAPACITY compare to other standards for capacity?

Answer 12

For INTER VIVOS GIFTS — TC is a LOWER standard bc there is no risk of inadvertent self-impoverishment.

For MARRIAGE — TC is a HIGHER standard bc marital freedom is a fundamental constitutional right.

Note: a person may LACK TC but POSSESS marital capacity. If so, the person may alter the estate plan by marriage (creating a new intestate heir in the surviving spouse).

Question 13

Should a lawyer ever prepare a will, trust agreement, etc. for a client who the lawyer believes LACKS the requisite CAPACITY?

Answer 13

NO! Under MPC §1.14(b) a lawyer may take reasonably protective action…. And generally should not prepare a will, trust agreement, etc. for a client who the lawyer reasonably believes lacks the requisite capacity.

On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline.

Question 14

What is majority rule BURDEN OF PERSUASION for TESTAMENTARY CAPACITY? The minority rule?

Answer 14

UPC / Majority Rule = Capacity is PRESUMED once proponent establishes prima facie evidence of due execution.

**Burden is on the CONTESTANT to rebut capacity presumption.

Minority Rule (NY, TX) = The PROPONENT (not the contestant) has the initial burden to demonstrate testamentary capacity as part of the probate application process.

**Standard of proof for rebutting capacity presumption: rebuttal requires preponderance of the evidence (majority rule) or in some states (NJ, PA) rebuttal requires clear and convincing evidence.

Question 15

May a person suffering from a diminished capacity execute a valid will during a LUCID INTERVAL?

Answer 15

YES! There is also no set period of time for a lucid interval.

**In some states, the lucid interval doctrine DOES NOT APPLY to an individual who has been ADJUDICATED INCOMPETENT by a COURT ORDER.

Question 16

What is the doctrine of INSANE DELUSION?

Answer 16

A belief that is so against the evidence and reason that it must be the product of derangement.

**A belief resulting from a process of reasoning from existing facts is NOT an insane delusion, even though the reasoning is imperfect or the conclusion illogical. Mere eccentricity does NOT constitute an insane delusion.

Question 17

Can a person who suffers from an INSANE DELUSION deprived of capacity to make a DONATIVE TRANSFER?

Answer 17

NO but a particular donative transfer is INVALID to the extent that it was the product of an insane delusion.

Restatement (Third) of Property: Donative transfers § 8.3

(a) A donative transfer is INVALID to the extent that it was procured by undue influence, duress, or fraud.

(b) Undue influence IF the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.

UPC § 3-303(c): in an informal probate proceeding, “a will which appears to have the required signatures and which contains an attestation clause showing that the requirements of execution (under the UPC) have been met shall be probated without further proof.

UPC § 3-407: In formal probate proceeding, “contestants of a will have the burden of establishing a lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.”

Question 18

Under UPC §3-407, what are the burdens in capacity contests?

Answer 18

To establish INTESTACY: burden of establishing prima facie proof of death, venue, and heirship.

PROPONENTS of a will: burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue.

CONTESTANTS of a will: burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.

NOTE: If a will is opposed by petition for probate of a later will revoking the former, the first question is whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, the first question is whether the will is entitled to probate.

Question 19

What evidence would support a capacity finding?

Answer 19

If a testator’s long-time attorney prepared the will, consulted with testator’s treating physician to confirm his cognitive ability, and asked the testator to confirm his capacity in accordance with common law factors.

NOTE: Proof of an Alzheimer’s diagnosis would NOT prove incapacity without evidence that the testator could not apply the black-letter factors. The capacity standard focuses on the testator’s ability to understand the terms and effect of inter vivos financial transactions.

Question 20

What is durable power of attorney?

Answer 20

Durable POA = often executed w/ will to facilitate property management and avoid need for guardianship upon incapacity.

• The principal must possess the requisite capacity to execute a durable power of attorney but need not possess capacity when an agent invokes the power to transact on the principal’s behalf.
• Durable powers expressly empower the agent to transact during the principal’s period of incapacity.
• Thus, contestants usually claim that the durable power instrument was not valid in the first place, that the agent exceeded the authority conferred by the power, that the agent exercised the power in violation of a fiduciary duty, or that the agent exerted undue influence.

Question 21

How is validity of a durable power of attorney determined?

Answer 21

Principal must be capable of understanding the terms and effect of the alleged agreement. POA must be free of undue influence.

Because durable powers can clothe the agent with extremely broad authority to transact on the principal’s behalf, some states require (or presume validity) witness attestation or notarization.

Question 22

What authority does durable power of attorney give the attorney?

Answer 22

Durable POA may authorize agent to give away principal’s property, but some states require such authority be expressly written into instrument.

Uniform Power of Attorney Act §217(c): an “agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors . . . .”

Question 23

For durable power of attorney, what is the attorney’s fiduciary duty?

Answer 23

Duty of loyalty prohibits self-dealing, but prohibition can be altered by donor.

Express authorization to gift property to agent might inoculate claim of fiduciary breach.

In some states, once a guardian or conservator is appointed by a court, the attorney-in-fact must report to the court-appointed fiduciary. See N.J. Stat. §46:2B-8.4(a).

Question 24

May undue influence be established by CIRCUMSTANTIAL evidence?

Answer 24

YES.

Restatement (Third) of Property § 8.3, cmt. e

If no direct evidence of undue influence, circumstantial evidence is sufficient to raise an inference of undue influence if the contestant proves:

1. Donor was susceptible to undue influence
2. Alleged wrongdoer had an opportunity to exert undue influence
3. Alleged wrongdoer had a disposition to exert undue influence and
4. There was a result appearing to be the effect of undue influence

• A mandatory inference of undue influence creates a rebuttal presumption that the will was wrongfully procured.
• Burden then shifts to proponent to show that the will was procured in good faith and represents the true & voluntary wishes of the decedent.
• The contestant typically must show:

1. Wrongdoer was a in a confidential relationship with the testator; and
2. Existence of suspicious circumstances relating to the will.

Question 25

What are CONFIDENTIAL RELATIONSHIPS in the undue influence context?

Answer 25

Fiduciary relationships are generally presumptively confidential bc the agent has a settled legal obligation to not abuse the principal’s trust.

Reliant relationships (doctor-patient, financial advisor-client) and dominant subservient relationships (caregiver-patient) are confidential when the facts show that the testator placed special trust or was subservient to the alleged wrongdoer.

Sometimes these relationship categories overlap.
- Look for an abuse of trust / vulnerability
- Extreme dominance / reliance
- Applies to a spouse holding a power of attorney who engages in alleged self dealing (usually by kids from the previous marriage)

NOTE: The inquiry closely scrutinizes the relationship, interaction, and dynamic between the wrongdoer and the decedent. Did the wrongdoer abuse his/her relationship with the decedent?

Question 26

In the undue influence context, how are SUSPICIOUS CIRCUMSTANCES proved?

Answer 26

Restatement (Third) of Property § 8.3, cmt. h

(1) The extent of the Donor’s weakened conditions
(2) How much the alleged wrongdoer participated in the preparation of the will/substitute
(3) Did the donor receive advice from a disinterested attorney/advisor on the matter?
(4) Will prepared in secrecy or haste?
(5) Whether donor’s attitude about the recipient had changed
(6) Discrepancy between new and previous wills
(7) Continuity of purpose indicating a settled intent of disposition
(8) Whether a reasonable person would regard it as unnatural, unjust, or unfair.

Question 27

For undue influence, what rules apply for inter vivos transfers?

Answer 27

Different rules may apply to gifts during life.

In re Garrison Trust (Pa. Super. Ct. 2023) – A challenger to an inter vivos gift claiming undue influence bears no burden of showing that the donor had a weakened intellect.

Question 28

When is a donative transfer procured by DURESS?

Answer 28

Restatement (Third) of Property § 8.3 (c)

A donative transfer is procured by duress 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.

NOTE: Threatening to inflict physical harm or steal from the testator are coercive acts that can constitute duress.

Question 29

When is a donative transfer procured by FRAUD?

Answer 29

Restatement (Third) of Property § 8.3 (d)

A donative transfer is procured by 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 otherwise have made.

• Fraud in the inducement = misrepresenting some fact that induced the donor to give a gift (telling testator lies about her daughter to influence the estate plan)
• Fraud in the execution = intentionally misleading the person about the contents of a document (asking a person to sign a will but telling them it’s really a birthday card)

Question 30

What is FORGERY?

Answer 30

Falsifying (fake signature on) an instrument and the “utterance” that it was legitimate.

A forgery:
- Is a legal nullity (cancels the will)
- Does NOT effect the transfer the transfer of legal title to property
- Can be set aside at any time (usually not restricted by statute of limit)

In the inheritance context, forgeries occur in (1) wills, (2) real property deeds owned by a decedent’s estate, and (3) life insurance death beneficiary designation forms.

Prima facie evidence of due execution creates presumption of validity that requires forgery contestant to rebut w/ clear and convincing evidence.
- Effect: inheritance forgeries can be easy to utter and difficult/costly to contest.

Question 31

What is the doctrine of TORTIOUS INTERFERENCE with inheritance?

Answer 31

Restatement (Second) of Torts § 774B

One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Question 32

What are the elements of tortious interference with inheritance?

Answer 32

(1) The existence of an expectancy of inheritance;

(2) an intentional interference by a defendant through tortious conduct, such as fraud, duress, or undue influence;

(3) a reasonable certainty that the expectancy of inheritance would have been realized BUT FOR the defendant’s interference; and

(4) damage resulting from that interference

FLORIDA: Also requires plaintiff to demonstrate exhaustion or inadequacy of probate remedies.
- Defendants often assert affirmative defenses of res judicata (claim preclusion) and collateral estoppel (issue preclusion).