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Question 1

How do you know if probable cause exists so that it was OK to contest a will that has a “no contest” clause?

Answer 1

Basically if he had a reasonable basis for bringing the contest, it is OK (a reasonable person would also think it was necessary).

Question 2

If someone brings a will contest with probable cause, and he loses, if there was a no contest clause in the will, does that mean that his gift will be taken away?

Answer 2

No, because he had probable cause to bring it.

Question 3

If someone brings a will contest and there was a no contest clause, but that person is successful in the will contest and gets the will knocked out, what happens?

Answer 3

The no contest clause doesn’t apply anymore

Question 4

If a will says, “I leave my estate to my son, and anyone that contests this will loses their gift.“ If a cousin contests this based on fraud because he is mad at the testator for cutting him out of the will, what happens?

Answer 4

The no contest clause is enforced because this is a direct contest that lacks probable cause

Question 5

What is involved in the element of a no contest clause that says you cannot bring a dispute about property if there’s a no contest clause that specifies that it applies to those claims?

Answer 5

If you try to challenge a transfer of property on grounds that it wasn’t the transferor’s property at the time of the transfer, as long as the no contest clause expressly provides for this application, then you can’t challenge it without risking your position under the will

Question 6

If a will says, “I leave my estate to Jake, and anyone that contests this will, including those that dispute the contents of my estate, lose their gift.“ If another person tries to have an item of property declared already gifted to him during the lifetime of the testator, what happens?

Answer 6

The no contest clause is enforced because it specified that it applied to property disputes.

Question 7

What is involved in the no contest clause rule that says it applies to creditor’s claims only if the no contest clause says it applies to that?

Answer 7

If someone files a creditor’s claim, and the no contest clause expressly provided that it applied to creditors claims, then that’s not OK

Question 8

If a testator owned a hotdog stand and had a dispute with a guy that he bought hotdog casings from, so he left the guy $1000 in his will with a no contest clause that said it applied to anyone filing a creditor’s claim, what happens?

Answer 8

That forces the guy to choose between pursuing the claim and forfeiting his right under the will, or taking the money

Question 9

What is involved in will formalities?

Answer 9

– there must be a writing
– signed by the testator
– attested to by two or more witnesses

Question 10

How long is a will revocable for?

Answer 10

Anytime until death

Question 11

Is an oral will allowed?

Answer 11

No

Question 12

What is the reason that you have a testator sign his will?

Answer 12

To show finality and genuineness.

Question 13

Is it always necessary that the testator himself signs his will?

Answer 13

No, it can be signed:

• with the assistance of someone else
• by someone else as long as the testator intended to adopt the document as a will
• as if it was signed in his presence
• at his direction

Question 14

What kind of marks count as a signature on a will?

Answer 14

Marks, crosses, abbreviations, initials, nicknames

Question 15

What is the order for signatures on a will?

Answer 15

The testator must sign before the witnesses attest, unless they all sign as part of a single continuous transaction

Question 16

Do typewritten full names of testators or e-signatures work for wills?

Answer 16

No

Question 17

What is the rule for witness attestation of a will?

Answer 17

The witness must observe the testator signing the will or him acknowledging that he signed the will, and then they have to sign it themselves to attest to that

Question 18

How many signatures do most jurisdictions require for witnesses for a will?

Answer 18

Two

Question 19

If a witness to a will also has an interest in the will, is that OK?

Answer 19

No, because he cannot be objective. There must be at least two disinterested witnesses. If a witness is interested, it only affects the validity of his gift under the will, not the validity of the will itself, and it creates a presumption that he got the devise by the duress, menace, fraud, or undue influence.

Question 20

If there are three witnesses to a will and one of them is an interested witness, what happens?

Answer 20

This is no problem as long as two of the witnesses are disinterested

Question 21

If an interested witness signs or attests to a will, can the presumption that there was duress or undue influence be rebutted?

Answer 21

Yes, by showing no duress, menace, fraud, or undue influence. This is often true if he just took a small gift under the will.

Question 22

What are the situations where an interested attesting witness can rebut the presumption that he got his devise by duress or undue influence?

Answer 22

If he was a family member of the testator

Question 23

If the drafter of a will is left a devise, the presumption of undue influence doesn’t apply in what situation?

Answer 23

If the drafter was closely related to the testator

Question 24

If an interested attesting witness cannot present enough information to rebut the presumption that he got his devise by duress or undue influence, what can he do as an alternative?

Answer 24

• he can take what he would’ve gotten if the testator had died intestate, or
• if there was an earlier will that he wasn’t a witness to, he can take up to the amount that he got in the earlier will

Question 25

If a will is witnessed by an interested witness, but later the testator executes a codicil where he republishes the will using to disinterested witnesses, what becomes of the bequest to the interested witness?

Answer 25

It is now fine

Question 26

What is the rule in California with regard to formalities for a will?

Answer 26

• it must be in writing
  – it must be signed by the testator or in his name by someone else that is in his presence and at his direction, or by a conservator according to a court order
  – there must be two attesting witnesses that sign during the testator‘s lifetime, but they do not have to sign in the testator‘s presence or in one another’s presence

Question 27

What does the Wills Act say about formalities for a will?

Answer 27

The witnesses must be present at the same time, they must witness the testator sign the will, and both must sign in the presence of the testator

Question 28

What is the timing rule in California with regard to witnesses attesting a will?

Answer 28

The witnesses must sign within a reasonable time after witnessing the testator’s signature or acknowledgment. In California you cannot sign after the death of the testator, but the UPC allows that to happen if it happens within a reasonable time

Question 29

If an attestation clause says that a witness signed under penalty of perjury, what does that do?

Answer 29

That can substitute for live testimony at trial and you don’t have to track down a witness later