Pg 7

Question 1

What is a will?

Answer 1

A document that transfers property on death and has the required formation formalities and limits on allowing extrinsic evidence to contradict or supplement it.

Question 2

What’s the rationale behind wills?

Answer 2

The law wants:

• a testator to act with caution and care in laying out his last word on what happens to his stuff
• to guard against fraud
• to protect third parties that are entitled to property under the will

Question 3

What are the general will requirements?

Answer 3

It has to be in writing and witnessed or attested by two or more people

Question 4

When does a will take effect?

Answer 4

On a testator’s death

Question 5

What is the first thing to deal with when a will is involved?

Answer 5

Validity

Question 6

What are the things that are required to make a will valid?

Answer 6

• the testator must have capacity to make the will

– the document must be executed with proper formalities: writing, signature, attestation

Question 7

What is the threshold requirement for a will?

Answer 7

That the testator had the capacity to make it

Question 8

What is involved in a testator having capacity to make a will?

Answer 8

• he must understand the nature and extent of his property
  – understand the people that are the natural objects of his bounty
  – the disposition he is intending to make
  – how all of these things relate to or form a plan for disposing of his property at death

Question 9

What is the presumption with regard to mental capacity of a testator?

Answer 9

He is presumed to have mental capacity unless there is evidence to the contrary

Question 10

What are the elements of having mental capacity to make a will?

Answer 10

• the testator must be 18 years or older on the date of execution
• must be “of sound mind“ at the time he made the instrument
  – must have had testamentary intent

Question 11

What are the two major ways to challenge a testator’s mental capacity?

Answer 11

• challenge the testator’s GENERAL MENTAL capacity by saying: he doesn’t understand the nature of the testamentary act, his property, or remember and understand his relation to living descendants/spouse/parents whose interests are affected by the will. The inquiry is whether a person was lucid and rational at the time of making of the will
  – claim the testator suffered from an INSANE DELUSION

Question 12

What happens if it is held that a testator lacked mental capacity at the time the will was made?

Answer 12

The entire will is invalid

Question 13

What are the major things that a testator must understand in order to have general mental capacity?

Answer 13

WHO GETS WHAT
– WHO: must remember and understand his relationship to others in the will
– GETS: must understand it is his will and he is transferring ownership of items through the will to be effective on death
– WHAT: must understand what his own property means and that he owns it

Question 14

Is it necessary to have a medical diagnosis to prove that someone is mentally incompetent to make a will?

Answer 14

No, mental incapacity is a legal concept, not a medical one, so the diagnosis is not necessary and incapacitation can be proved through witness testimony or circumstantially

Question 15

What is one of the most helpful ways to figure out if someone had capacity to make a will?

Answer 15

Get testimony from attesting witnesses to know what the testator was doing or thinking when he signed the will

Question 16

What are likely situations that someone did not have capacity to make a will?

Answer 16

Paranoia, dementia, Alzheimer’s

Question 17

What does it mean to challenge a will based on a claim that the testator suffered from an insane delusion?

Answer 17

A belief that the testator clings to that has no reasonable basis and that affects the disposition of the will.

Question 18

If a testator creates a will under an insane delusion, what happens to the will?

Answer 18

It is invalidated in whole or in part if that part is separable. Any portion of the will that was affected by the delusion becomes invalid.

Question 19

What are the things that must be shown for insane delusion to challenge the capacity of a testator?

Answer 19

– testator had a persistent belief in something that had no existence in fact and is believed against all evidence
– no reasonable basis for the belief
– the will or part of the will was a product of that delusion

Question 20

If a testator cuts one of his children out of his will because he thinks that child is a spy, when the kid is actually a mechanic that has never left town and there would be no reasonable basis to think he is a spy, would that count as an insane delusion?

Answer 20

Yes, but if the son travels constantly and never talks about his work, then maybe it wouldn’t be

Question 21

If a testator suffers from an insane delusion that has no impact on the disposition of his will, is that a problem?

Answer 21

No. There must be a causal connection between the delusion and how the will was written. This means that the delusion must result in how the testator devised his property

Question 22

If a testator would’ve made the same disposition of his property regardless of an insane delusion, what happens?

Answer 22

The will is valid and gets probated. The only way that the insane delusion would stop it is if the delusion was what resulted in the devising of the property

Question 23

If a testator makes a will that leaves his entire estate to his sister saying, “I wrote this on special paper because Superman told me to,” is that an insane delusion that would stop the will from being valid?

Answer 23

It is an insane delusion, but it had no effect on any of the dispositions under the will. It only affected the type of paper the will was written on, so because the insane delusion didn’t create the dispositions under the will, there’s no problem.

Question 24

What is an attestation clause and is it required?

Answer 24

A clause at the end of the will where the witness affirms that his signature shows that he personally saw the testator sign the will and that the testator was of sound mind when he did it. These are not required but they do create a rebuttable presumption of execution

Question 25

What is an example of an attestation clause?

Answer 25

“We certify that the above instrument was on the date signed and declared by John Doe as his will in our presence and we signed our names and found him to be of sound mind and memory at the time of signing.“

Question 26

What is undue influence or fraud with regard to a will?

Answer 26

The execution or revocation of a will or part of a will is not effective if it was done by duress, menace, fraud, or undue influence. The will is invalid because it was not the product of freely given informed choice since external factors stopped the document from expressing the testator’s true intent

Question 27

Undue influence and fraud apply to what parts of a will?

Answer 27

Both execution and revocation

Question 28

If a friend lies to a testator and says that his child was talking poorly about him, so the testator takes his child out of his will, is that valid?

Answer 28

No, because the execution was procured by fraud or undue influence

Question 29

If a will left everything to a friend, but then his child lies and said that the friend was talking poorly about the testator, so the testator revoked the will, what has happened?

Answer 29

That was a revocation procured by fraud or undue influence, so it would be invalid

Question 30

How does undue influence work with regard to a will?

Answer 30

Usually this involves a donative transfer being gotten by influencing the testator in such a way that it overcame his free will and caused him to make a transfer that he wouldn’t have otherwise made. Usually this involves overreaching by a wrongdoer because of age, inexperience, dependence, physical or mental weakness, etc.

Question 31

When is undue influence presumed?

Answer 31

• when a beneficiary has been actively concerned with the preparation or execution of a will
  – if a relationship is coupled with suspicious circumstances

Question 32

When is undue influence rebuttable with regard to a will?

Answer 32

If you can provide evidence that the testator acted on the independent advice of counsel from someone entirely devoted to the testator’s interest