Validity and Admissibility of Wills

Question 1

Insane Delusion

Answer 1

Testator’s capacity must not have been reduced by any intervening mental error
Delusion=mistaken belief
Insane=that is not subject to correction AND that affects the testamentary disposition

Question 2

A will is evidence of?

Answer 2

Decedent wants estate distributed according to their own specified instructions and not through the rules of intestacy.

Question 3

MCL 700.2501 (Capacity)

Answer 3

1. An individual 18+ who has sufficient mental capacity may make a will (Legal) and
2. an individual has sufficient mental capacity to make a will if all of the following requirements are met:
   - ability to understand that he or she is providing for the disposition of his or her property after death (nature of the act)
   - ability to know the nature and extent of his or her property
   - knows the natural objects of his or her bounty
   - ability to understand in a reasonable manner the nature and effect of signing the will AND not diminished by insane delusion

Question 4

Duress

Answer 4

A condition of the mind produced by improper external pressure destroying the free agency of the grantor and inducing him to execute a conveyance not of his own volition

Question 5

Steps to bring contest to a will under UI:

Answer 5

1. Original presumption: the will is proper and has no undue influence
2. contestant to provide sufficient evidence to rebut this presumption therefore raising a presumption of UI
3. This creates basis for rebuttal
4. If raised UI is not accepted, then back to the presumption of no UI.

Question 6

To establish undue influence, contesting party must show:

Answer 6

1. Testator was subjected to some kind of behavior sufficient to overpower vilition
2. Destroy free agency
3. Testator was impelled to act against his inclination and free will

Question 7

Signed

Answer 7

Initials count! They can show testamentary intent; look for facts to prove that.

Question 8

Elements of Undue Influence

Answer 8

S - Testator was susceptible
O - Influencer had opportunity
D - Influencer was disposed to exert such influence
R - the alleged influence resulted in some increase in what was left to influencer (influencer benefited as a result.)

Question 9

Substantial Compliance

Answer 9

When a testator substantially complied with those formalities, making the will valid despite execution errors.

Question 10

Writing

Answer 10

Doesn’t just have to be on paper; it must be the original

Question 11

MCL 700.2604

Answer 11

The last dispositive provision of the will (if it has one) that states if a devise fails then it becomes part of the residue. If there is no residuary clause then the devise will pass according to the rules of intestate succession.

Question 12

Michigan Law: Presumption of UI arises upon intro of evidence that establishes:

Answer 12

1. The existence of a confidental or fiduciary relationship between the testator and alleged influencer
2. The alleged influencer benefits from the will; and
3. The alleged influencer has an opportunity to influence the grantor’s decision in that transaction.

Question 13

Probate Law regarding Fraud

Answer 13

A will obtained by either kind of fraud is invalid, and such a will, if fraud is proven, cannot be admitted into probate.

Question 14

MCL 700.2502(2)

Holographs

Answer 14

Does not comply with subsection (1); 
3 components:
1. Dated
2. Signed
3. Material portion in testator's handwriting

Question 15

Conscious Presence

Answer 15

Within range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.

Question 16

MCL 700.2502

Attested Wills

Answer 16

An attested will must be:

1. In writing
2. Signed or acknowledged by testator (or another at testator’s direction and in testator’s conscious presence)
3. Signed by at least two individuals, each of whom sign in a reasonable time after witnessing either signing of the will OR acknowledgement of the signature or the will.

Question 17

Fraud in the execution

Answer 17

When testator intends to sign document, but not the document that the defrauder intends testator to sign

Question 18

Testamentary Intent must be present when?

Answer 18

initial execution of the will and subsequent amendments and revocations

Question 19

Karney

Answer 19

Rule: Spousal relationship does not equal a fiduciary relationship

Question 20

Confidential Relationship Test

Answer 20

1. Existence of a C/R between alleged undue influencer and testator
2. undue influencer benefits from the will
3. opportunity

Question 21

Proper execution of a will (in hierarchical order)

Answer 21

1. Attested
2. Holograph
3. Harmless error

Question 22

Requirements for a valid will

Answer 22

MUST include:
Capacity
Testamentary Intent
Proper Execution

Must NOT include
Undue Influence
Fraud/Duress
Revocation

Question 23

Contestant can base objection on one of the following claims:

Answer 23

Testator lacked capacity
Lack of testamentary intent
Will was not properly executed
Will was a product of undue influence
Will was a product of fraud/durress
Will was revoked

Question 24

Self-Proving Affidavit

Answer 24

1. Statement in an affidavit must be made under oath, in the presence of someone authorized by the state to administer such an oath;
2. This document requires no additional testimony to establish its conformity with execution requirements.
3. Separate document from the will itself.
4. Irrebutable
5. Execution of the will cannot be challenged

Question 25

MCL 700.2504

Harmless Error

Answer 25

Even when the writing or document doesn’t comply with 2502, the document is treated as if it had been executed in compliancewith that section of the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to consititue any of the following:

1. Decedent’s will
2. a partial or complete revocation of the decedent’s will
3. an addition to or an alteration of the decedent’s will
4. a partial or complete revival of the decedent’s formerly revoked will or formerly revoked portion of decedent’s will.

Question 26

MCL 700.2603

Answer 26

If a devisee fails to survive the testator and is a grandparent, a grandparent’s descendant, or a stepchild of the testator, the following apply:

(a) Except as provided in subdivision (d), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee’s surviving descendants. Those surviving descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.
(b) Except as provided in subdivision (d), if the devise is inthe form of a class gift, other than a devise to “issue, descendants, heirs of the body, heirs, next in kin, relatives, or family” or to a class described by similar language, a substitute gift is created in the surviving descendants of a deceased devisee.
(c) words of survivorship, such as in a devise to an individual “if he survives me” or in a devise to “my surviving children” are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.
(d) If the will creates an alternative devise for which a substitute gift creates by subdivision (a) or (b), the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will.

Question 27

Elements of Fraud:

Answer 27

1. False representation of material fact
2. With knowledge of falsity
3. For the purpose of inducing reliance
4. Testator in so reasonably relied in making will (detriment)

Question 28

Karr v. Hogan

Answer 28

Rule: To establish UI, contesting party must show grantor was subjected to:
threats, misrepresentation, undue flattery, fraud or physical or moral coercion sufficient to overpower volition, destroy free agency, and impel the grantor to act against his inclination and free will.
(Motive, opportunity, or even ability to control in the absence of affirmative evidence that it was exercised are not sufficient.)

Question 29

What is the problem with duress?

Answer 29

I cannot go on forever.

Question 30

Fraud in the Inducement

Answer 30

When the testator intends to make the will but its based on a lie by actions of the defrauder

Question 31

.Two types of fraud

Answer 31

1. Fraud in the inducement

2. Fraud in the execution

Question 32

4 functions that wills serve

Answer 32

1. Evidentiary function - reliable testamentary intent and terms of the will
2. Channeling function - documents to look the same over time
3. Cautionary function - importance of testamentary act
4. Protective function - 2 witnesses who can monitor one another

Question 33

UPC 2-501 (Capacity)

Answer 33

any person may make a will who is 18+ and of sound mind (legal and actual capacity)

Question 34

Confidential Relationship premise

Answer 34

Testator relies on undue influencer’s expertise or (whatever) and puts trust in them on that basis