Chapter 9: Bars to Succession and Will Contests Flashcards
The Effect of Homicide on Inheritance
A slayer may not inherit from a decedents estate.
A slayer is: (1) a person who is guilty as a principal or accessory in the willful killing of the decedent; (2) found liable in a civil action w/in 2 years of decedent’s death for the willful and unlawful killing; or is a juvenile who is adjudicated delinquent for an act that would be a willful or unlawful killing.
Slayers are treated as if they had predeceased the decedent. If the slayer and decedent hold property as tenants by the entirety 1/2 passes to decedents estate immediately and 1/2 passes to the estate of the slayer. I
If the slayer has issued who would be entitled to take, then the living issue take. This applies to all property, both probate and nonprobate.
These acts disqualify a spouse from taking.
An absolute divorce, annulment, or divorce from bed and board.
Separation and cohabitation that has not been condoned
Willful abandonment w/out cause
Obtaining a divorce that is not valid as recognized in NC
Knowingly entering into a bigamous marriage
Parents are disqualified from taking if
A parent who willfully abandons his child loses all rights to intestate succession, including the right to administer the estate, except when a parent:
Resumed care and maintenance at least one year before the child’s death, and continued care and maintenance; had been deprived of custody under a court order, and has substantially complied w/ all court orders regarding child’s contribution and support.
Renunciation
A devise or intestate inheritance must be actively renounced if the beneficiary chooses not to accept it.
The renunciation must: identify the transferor of the property interest, describe the property interest renounced, declare the renunciation and be signed and acknowledged by the person renouncing it.
The renunciation must be filed w/in 9 months of death to be qualified disclaimer for federal estate or gift tax purposes.
The spouse of a renouncing party has no elective share or other marital interest in the renounced property.
Caveat
A will contest in NC
Period of limitations for caveat
Generally 3 years from filing of a will, but if a will is probated in solemn form then the challenge must take place during the probate and anyone properly served cannot caveat the will
Standing to contest a will
Any interested party can contest a will
Insane delusion as a defense against a will
Insane delusion: a belief for which no factual support exists but to which the T adheres to despite all reason and evidence to the contrary.
In NC the caveator must show: T suffered an insane delusion, that was the sole cause of the disposition adn that the delusion was actually operative in the production of the will.
Undue Influence
Undue influence is the physical or mental coercion exerted by a third party on T with the intent to substitute the judgment of the third party for that of T.
Caveator must show the will would not have been made but for the undue influence.
7 factors that NC has identified as signs of undue influence. All do not need to be present:
1. old age/physical or mental weakness
2. T was in the home of the beneficiary and subject to her constant association and supervision.
3. Others had little or no opportunity to see T
4. The will is different from and revokes a prior will.
5. The will was made in favor of one with whom there are blood ties.
The will disinherits the natural objects of T’s bounty.
The beneficiary has procured its execution.
Fraud
Fraud must be present at the time of execution of the will. The elements of fraud are: misrep, w/ the intent to deceive for the purpose of influencing the testamentary disposition, reasonable reliance by T on the misrep and damages.
Fraud in the inducement: making knowingly false statement to induce T to make a different will from one she otherwise would have made.
Fraud in the execution: fraud as to the very nature of the instrument or its execution.
Constructive fraud: using confidential or fiduciary relationship to harm T.
Remedy: constructive trust
Forfeiture Clauses
A no-contest clause (in terrorem clause) is an express clause that disinherits a B who challenges the will.
They are generally enforceable, but not enforced against people who in good faith and with probable cause challenge the will.
Provisions in Restraint of Marriage
A broad restraint against marriage is generally void.
A reasonable restriction on marriage is valid.
