Other Wills Doctrines Flashcards
Mistakes or Ambiguities in Will: Reforming Will
Wills can be reformed to correct scrivener’s error to conform with testator’s intent, if the mistake is shown by clear and convincing evidence.
Wills can also be reformed upon petitioner of executor to: prevent impairment of estate’s administration or to achieve tax objectives/qualify beneficiary for government benefits.
Mistakes or Ambiguities in Will: Patent and Latent Ambiguity
Extrinsic evidence available to show testator’s intent as to latent ambiguity (misdescription matches two or more things) or patent ambiguity (uncertainty appears on the face)
If extrinsic evidence does not cure ambiguity, the gift fails.
Contracts Relating to Wills
Contract to make/revoke will established by:
(i) provisions in the will stating that a contract does exist and stating the material terms of the contract; or
(ii) a binding and enforceable written agreement (e.g. buy-sell agreement or premarital agreement)
Nonprobate assets:
Interests that pass at death other than by will or intestacy
Major types
- right of survivorship (e.g. bank account)
- property passing by contract (e.g. life insurance, death)
- property held in trust
- property over which decedent held power of appointment
Cannot change these by will since they are governed by contract.
Disinheritance (“Negative Bequest”) Clause
If disinheritance clause, treat the will like the person being disinherited predeceased.
“I intentionally make no provision for my son since he was never respectful to me”
Power of Appointment: purpose
permits life beneficiary (donee) to designate the remainderman
General: if she can appoint to anyone (e.g. creditors, herself, her estate)
Specific: if she can appoint only among a limited class of people
power of appointment can be exercised inter vivos (during donee’s lifetime) or testamentary (in donee’s will)
Power of Appointment: Failing to Exercise Power
If donee fails to exercise her power of appointment (donee’s will must expressly make reference to specific power of appointment, not just use a residual clause), her descendants take making them takers in default of appointment.
Exception for:
Exercise by Implication: where trust assets subject to power of appointment are then included in donee’s will the only way they could be given effect is if the power of appoint was exercised).
Will Contests: Test for Capacity
(apart from age)
Did testator have the capacity (AT THE TIME HE WAS WRITING WILL) to:
- understand the nature of the act he was doing.
- know the nature and approximate value of his property
- know the natural objects of his bounty
- relate these elements so as to form an orderly disposition of his property
Burden of proof: will proponents when offered for probate and will contestants after admitted to probate.
Will Contests: Test for Capacity (cont’d)
Test for capacity is different than in other cases (like guardianship)
So just because testator has a guardian, does not mean he has no capacity.
- Even if testator doesn’t usually have capacity, he could have a lucid interval where he had capacity.
Will Contests: Time Requirements
Normal: contest must be filed two years within the will being admitted to probate
Based on fraud or forgery: contest must be filed within 2 years of discovery
Contested by person with disabilities or minor: within 2 years after removal of minor or disability
Will Contests: Standing
Only interested parties (any person with economic interests that is adversely affected by the will’s probate) can contest will.
Beneficiary’s (legatees) and heirs are necessary parties.
Will Contests: Estoppel
Person who accepts benefits under the will, with full knowledge of the facts under which a contest could be based, is estopped from later contesting the will.
Will Contests: Proving Undue Influence
To establish undue influence contestant must prove:
(i) the existence and exertion of an influence
(ii) that overpowers the mind and will of the testator and
(iii) will would not have been made but for the influence.
Not enough:
- Mere opportunity to exert influence
- Mere susceptibility to influence (age, disability, etc.)
- Mere fact of unnatural disposition (e.g. some children take more than others)
Where a will is procured by one in a confidential relationship who benefits from the will, there exists an inference of undue influence, which is strengthened when there are specific circumstances.
Will Contests: Fraud
Will or gift invalid if the result of fraud.
Fraud in the execution: misrepresentation as to nature or contents of the instrument
Fraud in the inducement: beneficiary made a knowingly false representation for the purpose of inducing a will in his favor, and the testator made a different will than he otherwise would have.
Will Contests: Lawyer Including Gift to Himself in Will
Lawyer can’t make gift to himself or parent/descendant/employee/employee’s spouses unless testator was related to beneficiary within third degree of consanguinity or marriage.
