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Question 2

Valid Wills

Answer 2

-Who are of sound mind-Who understand what they are doing, and-Who are expressing their wishes voluntarily

Question 3

Invalid Will

Answer 3

-A testator lacks mental capacity because of dementia or other mental illness, or-The will is the product of undue influence, fraud or duress

Question 4

Mental Capacity

Answer 4

-Testator “must be capable of knowing and understanding in a general way:1) the nature and extent of his or her property2) the natural objects of his or her bounty (e.g. family members)3) the disposition that he or she is making of that property,-And must also be capable of4) relating these elements to one

Question 5

Burdens of Proof for Mental Capacity (Minority view, Indiana)

Answer 5

-Initial presumption that the testator possesses mental capacity-Contestant may offer evidence to rebut the presumption-If presumption is rebutted, proponent of the will must prove mental capacity by a preponderance of the evidence

Question 6

Burdens of Proof for Mental Capacity (Majority view)

Answer 6

-Proponent of will must introduce prima facie evidence of due execution-Burden switches to contestant to prove mental incapacity by a preponderance of the evidence-UPC § 3-407

Question 7

Insane Delusion

Answer 7

Testator may have sufficient mental capacity generally, but an insane delusion usually about a family member may affect the disposition of the estate

Question 8

Proving insane delusion (majority)

Answer 8

-Is the Delusion Insane?A delusion is insane even if there is some factual basis for it if a rational person could not have drawn the same conclusion.-Did the Delusion Cause Bequest?Insane delusion materially affected or influenced the will.

Question 9

Proving insane delusion (minority)

Answer 9

-Is the Delusion Insane?If there is any factual basis for the delusion, it is not insane.-Did the Delusion Cause Bequest?Insane delusion might have caused or affected the will (i.e. presume causation if there is an insane delusion + an unnatural disposition)

Question 10

Test for testamentary capacity

Answer 10

Testators must-Understand the nature of their act;-know the extent of their property;-Understand the proposed testamentary disposition; and-Know the natural objects of their bountyThe will must represent the testator’s wishesThe test is roughly the same from state to state

Question 11

Undue Influence

Answer 11

“A donative transfer is procured by 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…

Question 12

Inference of Undue Influence can be raised when:

Answer 12

-Donor was susceptible to undue influence-Alleged wrongdoer and opportunity to exert undue influence-Alleged wrongdoer had a disposition to exert undue influence -There was a result appearing to be the effect of undue influence

Question 13

Presumptions and Burden Shifting

Answer 13

Confidential Relationship + Suspicious Circumstances = Presumption of Undue Influence (Burden Shifting)

Question 14

Types of Confidential Relationships

Answer 14

-Fiduciary (attorney, appointed agent)-Reliant - Special trust and confidence (financial adviser, physician)-Dominant-subservient (feeble adult and caregiver or adult child)

Question 15

Examples of Suspicious Circumstances

Answer 15

-Secrecy or haste-Participation of wrongdoer in drafting of will-Reasonable person would regard it as unnatural, unjust or unfair-Donor’s attitude toward others changed by reason of his relationship with the alleged wrongdoer

Question 16

Undue Influence in Indiana

Answer 16

-If a confidential relationship exists (attorney-cleint, principal-agent, husband-wife, parent-child, pastor-parishioner), then contestant shifts burden of proof-The presumption of undue influence may be rebutted by establishing through clear and convincing evidence that-the influencer acted in good faith,-the influencer did not take advantage of the position of trust, and-the transaction was fair and equitable

Question 17

Undue Influence in Indiana (continued)

Answer 17

-If the undue influence arises from the facts of the case rather than a recognized fiduciary relationship, a confidential relationship is established if it is shown that the parties did not deal on terms of equality.-the influencer dealt with superior knowledge of the matter derived from a fiduciary relationship,-the influencer dealt from a position of overpowering influence, or-the testator dealt from a position of weakness, dependence or trust justifiably reposed in the influencer

Question 18

Bequests to Attorneys

Answer 18

-Undue Influence–Many courts hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when related to the testator.-Unethical Conduct–“A lawyer shall not solicit any substantial gift from a client, …unless the lawyer or other recipient … is related to the client.” Model Rule and Ind. Rule 1.8(c)-Fiduciary Appointments–“In obtaining the client’s informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.” Model Rule 1.8(c), comment

Question 19

Fraud

Answer 19

-Testator is deceived by a deliberate misrepresentation and as a result does that which s/he would not have done.-The misrepresentation must be made with the intent to deceive the testator and a purpose to influence the disposition

Question 20

Fraud in the Inducement

Answer 20

A misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor.

Question 21

Fraud in the Execution

Answer 21

A person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.

Question 22

Remedies for fraud

Answer 22

-Invalidate the fraudulently procured provision-Refuse to probate the will-Probate the will and impose a constructive trust

Question 23

Duress

Answer 23

-When undue influence becomes overtly coercive-“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.” -The law invalidates transfers compelled by duress