Fraud, duress, and mistake Flashcards
When may the court reform the terms of a will? Of a trust?
The court may reform the terms of a will under clear and convincing evidence of the testator’s intent. Fla. Stat. § 732.615.
The court may reform a trust to meet the needs of the beneficiaries. Fla. Stat. § 736.0415.
After a person dies, how soon does the will need to be turned over to the court?
The custodian has ten days to turn over the will to the court. Fla. Stat. § 732.901.
What happens to the will if it is procured by fraud?
Under Fla. Stat. § 732.5165 a will, or portion thereof, is void if its execution is procured by fraud
Constructive trust
A constructive trust is a remedy imposed in cases where the transferee of property would be unjustly enriched if allowed to keep the property and certain other factors (such as fraud, undue influence, or confidential relationship) are found
What kinds of fraud are there?
Fraud in the execution and fraud in the inducement
Fraud in the execution
When the document has been switched or deliberately altered
When the testator is misled as to which type of document he is signing (he is told that it is a real estate contract but it is actually a will)
Requires the intent to deceive
Fl Stat. 732.5165 – any part of a will is void if the execution is procured by fraud, duress, mistake, or undue influence
Fraud in the inducement
If the testator was intentionally misled into forming a testamentary intent that he would otherwise not have formed, the lie may constitute fraud in the inducement
Testator knows what is in the will BUT not real contents E.g. pages switched BEFORE execution of the will
Defrauder MUST have intent to mislead
Duress
The same rules for fraud apply to duress
Duress sufficient to invalidate a will or devise requires a showing that some threat of physical harm or coercion was made against the testator
If there is a change in the law concerning probate, which law applies?
The law that exists at time of DEATH (NOT at time of EXECUTION)
