Pg 8

Question 1

What are the four elements to prove undue influence for a will?

Answer 1

SMOC
– susceptibility
- motive
- opportunity
– causation

Question 2

Who has the burden of proving undue influence with regard to a will?

Answer 2

The party that is claiming it existed

Question 3

What is involved in the element of susceptibility with regard to undue influence?

Answer 3

The testator must be susceptible to influence. This often comes from being weak willed, feeble, isolated, etc.

Question 4

What is involved in the element of motive for undue influence with regard to a will?

Answer 4

The influencer must’ve had some reason to exert influence. This is established if he got more from the will than he would have without it, or if it would benefit someone closer to the influencer like a child or spouse

Question 5

What is involved in the element of opportunity for undue influence with regard to a will?

Answer 5

The influencer must have access to affect the will and shape the testator’s worldview or perception of others. This is someone like an in-home care nurse

Question 6

What are some of the confidential relationships that the California statute says that if you make a devise to someone in those relationships of trust and confidence, the testator is presumed to have acted under the result of undue influence even when there isn’t evidence that it exists?

Answer 6

If the will left a gift to:
– the testator’s ATTORNEY
– the DRAFTER of the will
– a SPOUSE/partner/employee of the drafter or attorney
– financial advisor
– doctor
– caretaker that isn’t a family member

***These are all thought to be a natural and presumed you can cook your through

Question 7

What is the one exception under the California statute that lists certain confidential relationships that cannot take under a will without there being assumed undue influence?

Answer 7

If the attorney or the drafter of the will is related to the testator [like a child], or an independent attorney gave advice and that attorney will certify that the gift was not procured under undue influence.

Question 8

How can a beneficiary that receives something under a will and is being accused of there being undue influence rebut that accusation?

Answer 8

If he can show good faith on his part, the grantor’s full knowledge and deliberation of the consequences of his actions, and the grantor’s independent consultation and action.

Question 9

What is involved in causation as an element of undue influence?

Answer 9

There must be a causal connection between the influence and the contents of the will. There must be some unnatural disposition where the property is going somewhere that seems unnatural. Unnatural basically means not to a close relative

Question 10

What is fraud with regard to a will?

Answer 10

An intentional misrepresentation that is designed to, and which does, induce reliance by the victim to his detriment.

Question 11

What are the two different kinds of fraud?

Answer 11

• fraud in the execution

– fraud in the inducement

Question 12

What is fraud in the execution?

Answer 12

When the testator doesn’t even know he is signing a will. I.e.: you slip in a will and pretend it is a birthday card for him to sign. This is invalid because the testator did not have testamentary intent

Question 13

What is fraud in the inducement?

Answer 13

When you make an intentional misrepresentation to the testator for the purpose of and which does in fact affect the will. In the situation the testator knows he is making a will, but there is some kind of fraud that affects how he disposes of the property. I.e.: someone lies to the testator and tells him that his son was killed, so he takes his son out of the will. This is invalid

Question 14

What are remedies for undue influence or fraud?

Answer 14

- invalidation
– constructive trust
– tort claim
– interference with contract
– malpractice

Question 15

When would you use a constructive trust as a remedy for undue influence or fraud?

Answer 15

If invalidation would not be good because it would mean that the estate would be distributed against the testator’s wishes, then the court uses a constructive trust to avoid unjust enrichment. Ie: if someone lied to the testator and said that his son was dead, so the testator changed his will and now that person gets half of the estate, a constructive trust could require him to turn over that half to the son.

Question 16

How can a tort claim be a remedy for undue influence or fraud?

Answer 16

That can be brought by anyone that was directly injured because of wrongdoing for intentional interference with prospective economic advantage as long as someone had a reasonable expectancy that would have accrued if not for the defendant’s wrongful interference.

Question 17

Is it possible to bring a suit for interference with contract if someone acted with undue influence or fraud on the making of a will?

Answer 17

No, because a will is revocable until death, so someone named in the will doesn’t have a vested property interest until the testator dies

Question 18

How can malpractice be a remedy if there’s been undue influence or fraud with relation to a will?

Answer 18

The intended beneficiary can sue the testator’s attorney for malpractice if a drafting error caused him to be cut out of the will and the lawyer failed to act according to the professional standard of care in the community. You can usually sue under:
– Tort: the attorney owed a duty of care to the intended beneficiary because he was within the foreseeable zone of danger from negligence of the attorney in drafting the will
– contract: the beneficiary was the intended third-party beneficiary of a contractual attorney client relationship, so he can sue for breach if the attorney performed incompetently in drafting the will

Question 19

What is a no-contest clause?

Answer 19

A provision in a will that deprives any challenger of the will of an interest under the will

Question 20

Who can challenge a will?

Answer 20

Any interested party. This includes someone named in the will, an intestate heir that is cut out of the will, someone that would’ve got a larger share if he could’ve taken via intestacy, etc.

Question 21

If a will says, “house to A, car to B, stocks to C. Anyone that contests the will’s validity takes nothing.“ What is that?

Answer 21

A no contest clause

Question 22

How are no contest clauses treated?

Answer 22

They are allowed but they are construed narrowly

Question 23

What is the point of a no contest clause?

Answer 23

It creates a disincentive to challenge the will, but it only works for people to have something to lose under the wheel.

Question 24

Why do no contest clauses not really work in some situations?

Answer 24

Because for people like intestate heirs that get cut out of the will, they have nothing to lose by challenging the will.

Question 25

What is a smart way to avoid having people challenge the will that have nothing to lose under the will?

Answer 25

Have a no contest clause that gives a small gift to disfavored relatives that is just big enough to make them not want to challenge the will.

Question 26

No contest clauses are only enforced against what three types of contests?

Answer 26

• direct frivolous contests brought without probable cause
• disputes about property, but only if the no contest clause specifies that it applies to those claims
  – creditor’s claims, but only if the no contest clause says it applies to that

Question 27

What are things that you can contest a will for and the no contest clause doesn’t apply?

Answer 27

• ambiguity: if it lists John as a nephew, but there are two nephews named John
  – mistake: if it says that John is a niece, but John is really a nephew
  – executor challenge: if the executor has been convicted of embezzlement

Question 28

What is involved in one of the types of no contest clause issues that calls for a direct contest brought without probable cause?

Answer 28

If someone contests the will on any of these grounds and doesn’t have probable cause to do it, and the will has a no contest clause, the person is denied their gift under the will: forgery, lack of due execution, lack of capacity, menace/duress/fraud/undue influence, revocation, disqualification for beneficiary, etc.