Contests to Wills Flashcards
What are some defenses?
- insane delusion
- fraud
- undue influence
- mistake
What is an insane delusion, and its effect?
(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
What is fraud?
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
What are the types of fraud, and their effects?
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
What is fraud in execution?
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
What is fraud in inducement?
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
What is fraud in prevention of revocation?
Fraud in prevention of revocation = no probate
- wrongdoer’s misrepresentations of material fact prevent the testator from revoking the will
• effect = construct trust
What are the types of undue influence?
- prima facie case
- presumption of undue influence
- statutory undue influence
What is the prima facie case of undue influence?
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
Presumption of undue influence
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
Statutory Undue Influence
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
Types of mistakes
Types of mistakes
- in the execution
- in the inducement
- in the content
- in the description
- involving living children
Mistake in the execution
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
Mistake in the inducement
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
Mistake in the content
Wrong person name beneficiary or wrong gift devised
Omission = no remedy
Addition = remedy available
Mistake in the description
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
What is a latent ambiguity for mistake in the description?
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
What is a patent ambiguity for mistake in the description?
ambiguity that is apparent on the face of the will instrument
Involving Living Children
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
Dependent Relative Revocation (DRR)
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
