Formation Flashcards
Will contests
- grounds for a will contest include:
i. lack of intent
ii. lack of capacity
iii. undue influence, fraud, mistake
iv. defective execution
v. revocation - procedure
i. will contest must be filed within 120 days after will admitted to probate
ii. only interested parties have standing (creditors, executors, and trustees do not have standing)
iii. all legatees under the will and intestate heirs are necessary parties - if a part of the will is procured by undue influence, fraud, duress, or mistake, only that part is void and the remainder is given effect
Intent
- testator must have the present intent to make a particular instrument their will
Capacity
- lowest capacity recognized by law
- requirements: at time of execution, the testator must: (18, nature of act, extent of property, objects of bounty)
i. one: be 18 years of age at the time of execution
ii. two: know the nature of their act
a. must know that she is executing a will
b. does not have to know all of the legal technicalities of the will
iii. three: have ability to understand the extent of her property
iv. three: know the natural objects of her bounty
a. natural objects: spouse/partner, issue, parents, those affected by the will - entire will is invalid if no capacity and property passes by intestate succession
i. prior will exception: a prior will is probated if it was revoked by the will without capacity
a. testator has a prior will
b. prior will purportedly revoked (by 2d will for which the testator did not have capacity)
c. then: the prior will is probated bc 2d will could not have revoked the first - bar tip: a mere appointment of a conservator or diagnosis of a mental disorder is not enough or incapacity
i. however, may establish that a requirement for capacity is lacking
Insane Delusion
- testator had an insane delusion at the time of execution
- requirements: false belief due to sick mind unsupported by any evidence affecting the will
i. testator had a false belief
ii. which was the product of a sick mind
iii. unsupported by even a scintilla of evidence supports the belief
iv. causation: the delusion affected the will - effect:
i. only the affected part of the will is invalid
ii. affected part goes to the residuary devisee
iii. if none, or if the residue itself is affected, by intestate succession - residuary gift
i. the part of the estate not otherwise expressly disposed of in the will
ii. ex. Blackacre to A, Whiteacre to B, residue to C
a. C is residuary devisee, gets the balance of the estate (can be $1 or $1bn) - vs. lack of capacity
i. no capacity is a very severe problem going to testator’s essence (ex. not knowing one’s spouse)
ii. delusion: otherwise normal testator has a narrow problem (ex. belief spouse is cheating)
Fraud
- requirements:
i. representation
ii. of material fact
iii. known by wrongdoer to be false
iv. intended and in fact inducing some action or inaction - good faith belief is a defense to fraud
Types of fraud - fraud in execution of the will
i. the wrongdoer’s representation affects the execution
ii. testator does not intend the document to be her will
iii. effect: entire will is invalid, and property passes by intestate succession
a. prior will exception: if prior will existed and was validly executed, it could not be revoked by the fraudulent will
Types of fraud - fraud in inducement
i. the wrongdoer’s representation affects the contents of the testator’s will
a. ex. son lies to make testator believe the FBI is investigating the charity testator was going to name on the will
ii. testator intends the document to be her will, but the contents are affected
iii. effect: only the affected part of the will affected by the fraud is invalid
iv. court can choose as to the affected part:
a. give it to the residuary devisee, but if no residue, give it to the heirs at law by intestate succession, or
b. constructive trust remedy
a) court denies probate to the portion of the will induced by fraud
b) property goes either to the residuary devisees or the heirs at law, who become constructive trustee. the constructive trustee has duty to transfer the property to the intended beneficiary, as determined by the court (ex. the charity)
ii) may be required to prevent the fraud wrongdoer from obtaining the property
types of fraud – fraud in preventing testator from revoking will
i. testator does not revoke the will as intended because of the fraud
a. ex. testator changes mind and wants to donate property to charity, but son’s lies about the charity being investigated prevent testator from revoking
Effect of fraud
court does not probate the will
a. property goes to heirs
b. heir also becomes a constructive trustee, with a duty to transfer the property to the intended beneficiary
Undue influence
- requirements: influence exerted on testator subjugating the testator’s free will, resulting in a will that would not have been executed but for the influence
- bar tip: discuss all three ways of establishing undue influence
i. mere begging, pleading, nagging, cajoling, and even threatening are not enough
ii. the free will of the party must be destroyed
Prima facie case, common law presumption of undue influence and statutory presumption of undue influence
- circumstantial evidence:
i. susceptibility: weakness makes testator susceptible to undue influence
a. weakness can be psychological, financial, physical, or any weakness
ii. opportunity: wrongdoer had access to the testator (low bar)
iii. active participation: wrongdoer’s wrongful act to get the gift, can be any coercion
iv. unnatural result: wrongdoer’s takes a devise an ordinary person would not expect
a. usually someone without relation to the testator - common law presumption:
i. confidential relationship between testator and wrongdoer( such as good friends, atty-client, dr-patient, guardian- ward)
ii. active participation: any coercive act
iii. unnatural result - statutory presumption of undue influence if a donative transfer is made to:
i. drafter of the instrument
ii. transferor’s care custodian (ex. a nurse), if transferor is a dependent adult
iii. or any spouse, partner, blood relative, cohabitant, or employee of the above - no statutory presumption if:
i. transferee is a spouse, partner, blood relative, or cohabitant of the transferor, or
ii. instrument is reviewed by an independent attorney, or
iii. transfer is < $5000 and estate is over $100k - effect:
gift lapses, transferee does not take.
i. only the affected part of the will is invalid
ii. affected part can go:
a. to residuary devisees, or if none, to heirs at law by intestate succession or via constructive trust remedy (residuary is the trustee) - undue influence vs. fraud
i. undue influence does not require a lie, just a wrongful act
Tortious Interference
- plaintiff must show: (expectation + tortious interference + causation)
i. reasonable expectation of receiving an interest from decedent
ii. defendant interfered with the interest
iii. the interference was tortious
iv. and the interference caused plaintiff to not receive the interest - remedy only available if there is no adequate remedy in probate (ie. will contest)
i. thus usually only for those who lack standing or for a non-probate asset
Wrongful taking or concealment
- someone who wrongfully takes or conceals trust or estate property, or wrongfully disposes of it through undue influence or bad faith or elder abuse, is liable for twice its value, in addition to other remedies
Mistake in Content
- will naming wrong beneficiary or making wrong gift due to accidental omission or addition
i. accidental omission: Blackacre to J, instead of Blackacre to J and M
ii. accidental addition: Blackacre to J and M, instead of Blackacre to J - traditionally no relief, since courts cannot rewrite wills
- CA case law (Estate of Duke)
i. a court can reform the will to testator’s intent if:
a. the will is unambiguous on its face, and
b. clear and convincing evidence establishes: (mistake + actual intent)
i) will contains a mistake (either by addition or omission) as to testator’s intent when drafted, and
ii) testator specific intent at time of drafting
ii. extrinsic evidence is admissible to satisfy each element
Mistake in Execution
- testator signs the wrong document
- if testator’s mistaken belief the document is non-testamentary:
i. effect: will is not probated, bc testator did not intend a will - if testator signs the wrong mutual or reciprocal will:
i. mutual will: reciprocal wills where two testators each leave everything to the other
ii. ex. wife signs husbands will, and husband dies
iii. effect: court reforms the will, especially if testators are married or domestic partners
a. substituting husband and wives names
