F. Will Contests

Question 1

What is required for Testator to have testamentary capacity?*

Answer 1

1) 18 years or over
2) Understands nature + consequence of executing will
3) Knew nature + extent of disposing property
4) Knew the beneficiaries as natural objects of T’s bounty

FYI Testator has burden of proof

Question 2

What is required for contesting Will under Undue Influence?*

Answer 2

1) Influence amounted to moral coercion
2) Restrained independent action + Destroyed fee agency
3) Constrained Testator’s free will
4) Testator was NOT able to refuse/weak to resist

FYI Objectant has burden of proof

Question 3

What is required for contesting Will by Fraud?*

Answer 3

1) Knowingly made false statement
2) Property disposition would have been made in different manner ‘but for’ false statement

FYI Objectant has burden of proof

Question 4

What is ‘In Terrorem’ clause in NY?*

Answer 4

If Beneficiary contests will => Beneficiary can NOT take disposition
- Whether or NOT Beneficiary has probable cause (unlike US law)

Question 5

What are the exceptions to ‘In Terrorem’ clause (when can Beneficiary contest will + still take disposition)?*

Answer 5

Beneficiary objects on grounds of forgery/revocation by later will
- Probable cause required

Beneficiary objects to court’s jurisdiction/refuses to join probate petition/waives service of citation

Beneficiary provides info re will probate

Beneficiary conducts preliminary examinations to evaluate his objections’ merits
- Depositions of limited no. people

Commences proceeding for constructing will provisions

Guardian objects on behalf of Infant Beneficiary

Question 6

What is required for standing to contest probate of will?*

Answer 6

Probate would ‘adversely’ affect Contestant’s interests

Question 7

What is required for contesting Will by Mistake?*

Answer 7

Testator made mistake of fact