Contests to Wills

Question 1

What are some defenses?

Answer 1

• insane delusion
• fraud
• undue influence
• mistake

Question 2

What is an insane delusion, and its effect?

Answer 2

(1) false belief;
(2) unsupported by any evidence;
(3) product of a sick mind; and
(4) delusion affected will

Effect = only part affect invalid
- invalid part will pass to residuary devisee or, if none, by intestate succession

Question 3

What is fraud?

Answer 3

Fraud is a

(1) misrepresentation of material face;
(2) known to be false;
(3) purpose of inducing act or omission; and
(4) actually induces desired act/omission

Question 4

What are the types of fraud, and their effects?

Answer 4

Fraud in execution = entire will invalid
- e.g., forcing testator’s signature on a will or testator signs document under the belief that it is non-testamentary in nature
• effect = intestate succession unless prior valid will

Fraud in inducement = wrongdoer’s misrepresentations of material fact effect contents of the will
• effect = only part affected invalid;
- residuary clause
- no residuary clause = intestate succession; or
- constructive trust

Fraud in prevention of revocation = no probate
- wrongdoer’s misrepresentations of material fact prevent the testator from revoking the will
• effect = construct trust

Question 5

What is fraud in execution?

Answer 5

Fraud in execution = entire will invalid
- e.g., forcing testator’s signature on a will or testator signs document under the belief that it is non-testamentary in nature
• effect = intestate succession unless prior valid will

Question 6

What is fraud in inducement?

Answer 6

Fraud in inducement = wrongdoer’s misrepresentations of material fact effect contents of the will
• effect = only part affected invalid;
- residuary clause
- no residuary clause = intestate succession; or
- constructive trust

Question 7

What is fraud in prevention of revocation?

Answer 7

Fraud in prevention of revocation = no probate
- wrongdoer’s misrepresentations of material fact prevent the testator from revoking the will
• effect = construct trust

Question 8

What are the types of undue influence?

Answer 8

1. prima facie case
2. presumption of undue influence
3. statutory undue influence

Question 9

What is the prima facie case of undue influence?

Answer 9

Elements

(1) susceptible testator
- psychological
- financial
- physical
- any other weakness
(2) opportunity to influence = access to testator
(3) disposition/motive to influence = the wrongful conduct; and
(4) unnatural result

Effect = only part affect

- residuary clause
- no residuary clause = intestate succession; or
- constructive trust

Question 10

Presumption of undue influence

Answer 10

Elements

(1) confidential relationship - in CA whenever someone places trust in another
- not applicable to husband-wife or domestic partners
(2) active participation in execution of will; and
(3) unnatural result

interested witnesses = presumption of undue influence
• exception:
- two other uninterested witnesses; or
- interested witness takes only in fiduciary capacity
• effect = will valid but amount > intestate share invalid

Effect = only part affect invalid

- residuary clause
- no residuary clause = intestate succession; or
- constructive trust

Question 11

Statutory Undue Influence

Answer 11

Invalid donative transfer
• drafter of instrument
• drafter's
- relatives
- spouses
- domestic partners
- cohabitants
- business partner; or
- EE

• persons in fiduciary relationship w/ settlor/testator
• Care custodians of dependent adult settlor/testator
• care custodians
• dependent adult = > 64 years old; or 18 y/o w/ mental/physical disability

• Exceptions:

(1) independent atty review by transferor’s atty
(2) court ruling
- burden of proof = clear and convincing evidence
- inapplicable when transferee is the drafter
- applicable if transferee is drafter’s = relative, spouse, domestic partner, or cohabitant

• Effect = will valid but devise > intestates share invalid

Question 12

Types of mistakes

Answer 12

Types of mistakes

• in the execution
• in the inducement
• in the content
• in the description
• involving living children

Question 13

Mistake in the execution

Answer 13

Testator signs the wrong document

Effect = will invalid

exception: Reciprocal Wills
- the ct, however, may reform a will where there are reciprocal wills b/w husband and wife (or domestic partners) but the parties each mistakenly signed the incorrect document

Question 14

Mistake in the inducement

Answer 14

Testator makes particular devise based on mistaken belief

Effect = no relief

Face of instrument exception

• mistake appears on face; and
• disposition but for mistake appears on face

Question 15

Mistake in the content

Answer 15

Wrong person name beneficiary or wrong gift devised

Omission = no remedy

Addition = remedy available

Question 16

Mistake in the description

Answer 16

Types of mistakes in description

• non-identification - description does not exactly match any person/thing
• equivocation - description applies equally well to two or more people/things

Effect = extrinsic evidence admissible for both latent and patent ambiguities

• Latent Ambiguity = clear and appears to have but one meaning on the face of the instrument, yet outside evidence makes it capable of more than one meaning
• Patent Ambiguity = ambiguity that is apparent on the face of the will instrument

Question 17

What is a latent ambiguity for mistake in the description?

Answer 17

clear and appears to have but one meaning on the face of the instrument, yet outside evidence makes it capable of more than one meaning

Question 18

What is a patent ambiguity for mistake in the description?

Answer 18

ambiguity that is apparent on the face of the will instrument

Question 19

Involving Living Children

Answer 19

Accidental omission involving children of testator

• born/adopted after testamentary instruments executed = pretermitted child
- effect = intestate share

• born/adopted before testamentary instruments executed ≠ pretermitted child

• child = child disinherited
• exception: testator mistakenly believe child dead/non-existent; effect = intestate share

Question 20

Dependent Relative Revocation (DRR)

Answer 20

Test for DRR

(1) revocation in whole or in part
- revocation by physical act; or
- subsequently executed instrument
(2) upon mistaken belief in validity of subsequent will; and
(3) prior will
- substantially identical; AND
- consistent w/ testator’s intent

Effect = old will reinstated by operation of law

1st will destroyed = CA’s Lost Will Provisions
- at least one witness testifies to contents of destroyed will