W&T: Wills: Capacity and Intent

Question 1

Will: definition

Answer 1

a will is a revocable written instrument that is effective only upon the testator’s death

Question 2

To ve valid, will must

Answer 2

be executed by a competent individual, with requisite testamentary intent, and must:

(1) dispose of property
(2) appoint an executor;
(3) dispose of remains; or
(4) revoke a prior testament

Question 3

what is a codicil

Answer 3

a supplement to a will that adds to alters, or partially revokes the terms of the will

Question 4

competency

Answer 4

a testamentary instrument must be made by someone who is at least 18 years of age and of sound mind at the time of the testament’s execution

Question 5

Incompetency

Answer 5

a person is not competent to make a will or perform any testamentary act if he lacks ability to understand:

(1) the nature and extent of his property;
(2) the natural objects of his bounty;
(3) the nature of the testamentary act; and
(4) how these elements relate to create an estate plane

Question 6

Undue influence

Answer 6

where the testator’s will was overborne. Court will consider:

(1) susceptibility
(2) opportunity;
(3) motive;
(4) causation;
(5) substitution

Question 7

Fraud

Answer 7

the intentional deception of the testator with respect to the nature of the document or the content of the will.

Question 8

Consequences of Fraud

Answer 8

the court can do any of the following:

(1) invalidate the affect portions or the entire will; or
(2) probate the will, but impose a constructive trust upon the affected distribution in favor of the disadvantaged person.

Question 9

The intent required to make a will is

Answer 9

a genuine, present, and unconditional intent

Question 10

No contest clauses

Answer 10

no contests are enforceable regardless of whether the contestant has probable cause or not. a no contest clause is not violated by: a contest to show forgery, contests brought by minors, requests for disclosures, right of election