Will Contests

Question 1

Is extrinsic evidence admissible to contradict the meaning of a will?

Answer 1

No - the plain meaning of a will won’t be overturned by extrinsic evidence. Absent suspicious circumstances - it is conclusively presumed that testator read the will and intended its consequences.

Question 2

What is a latent ambiguity?

Answer 2

The error is not obvious on the face of the will but it becomes obvious in trying to distribute the property. (E.g. something or some person is mis-described)

Question 3

What extrinsic evidence is admissible to clarify a latent ambiguity in a will?

Answer 3

1. Facts and circumstances evidence
   (evidence about testator, his family, relationships, etc.)
2. Evidence of testator’s declarations of intent to third parties.
3. Evidence of testator’s statements to the attorney who prepared the will.

Question 4

What extrinsic evidence is admissible to clarify a patent ambiguity in a will?

Answer 4

1. Facts and circumstances evidence

2. Evidence of testator’s statements to the attorney who prepared the will.

Question 5

Define conditional will.

Answer 5

A will that expressly provides it will be operative only if some condition is met.

Question 6

What arguments can you make if you see a conditional will - and the condition did not occur, but testator died without changing the will?

Answer 6

1: the will is conditional, and probate should be denied because the condition did not occur.
2: the reference to the condition merely reflects a motive to write the will in the first place - and it should be probated despite the failed condition.

Question 7

What is a joint will?

Answer 7

The will of two people in one document - BAD! DON’T MAKE A WILL LIKE THIS.

Question 8

How can you establish a contract to make a will or to not revoke a will?

Answer 8

ONLY by an express statement of intent that the will’s provisions are intended to constitute a contract between two parties.

Question 9

If two people write a will together and use the language “we” and “our” - is that a contract of non-revocation?

Answer 9

No - the court will not find a contract of non-revocation without an express statement of intent.

Question 10

What result if the court finds there was a contract of non-revocation in the will, but the surviving spouse decides to breach the contract by revoking and writing a new will?

Answer 10

Probate the new will, but impose a constructive trust in favor of the beneficiaries of the original will. A contractual will can only be revoked by agreement while both parties are alive.

Question 11

What are the requirements for testamentary capacity?

Answer 11

Testator has sufficient capacity to:

1. understand the nature of the act (that he’s writing a will)
2. know the nature and approximate value of his property
3. know the natural object of his bounty (his family members and loved ones)
4. understand the dispositions he is making in the will.

Question 12

If a person is found incompetent and is appointed a guardian, are they necessarily incapable of executing a valid will?

Answer 12

No - the standards for legal capacity and testamentary capacity are different, and the legally incapable person could have written the will during a lucid interval.

Question 13

What is an insane delusion?

Answer 13

Though testator is generally sane, he has a persistent belief in a fact that is against all evidence, possibility, and control - and that insane belief has an effect on testator’s decisions about the will.

Question 14

What constitutes undue influence sufficient to invalidate a will?

Answer 14

The challenger has the burden of proving:

1. existence and exertion of influence,
2. the effect of the influence was to overpower the mind of the testator, and
3. the product is a will or gift in a will that would not have been made absent the influence.

Question 15

Can a will challenger meet his burden of showing undue influence merely by showing the influencer had the opportunity to exert influence?

Answer 15

No - mere opportunity to influence is not sufficient.

Question 16

Can a will challenger meet his burden of showing undue influence by pointing to the testator’s age or illness alone?

Answer 16

No - that a testator is very old or ill is not sufficient evidence of undue influence.

Question 17

Can a will challenger satisfy his burden of showing undue influence by showing that the distributions between the children are unequal?

Answer 17

No - unequal distribution alone is not sufficient evidence of undue influence.

Question 18

What evidence does create a rebuttable presumption of undue influence?

Answer 18

1. Will makes a gift to one in a confidential relationship with testator, and
2. that person was active in preparing the will
   - but it can be rebutted.

Question 19

What is Putnam Scrutiny?

Answer 19

If a will bequests money or property to the drafting attorney, that triggers an automatic investigation as to the voluntariness of the gift.

Question 20

What are the requirements in NY for a person to appoint their drafting attorney (e.g. as executor)?

Answer 20

Drafting attorney named executor of testator’s estate must give testator a written disclosure that:
- any person can be named an executor (not just an attorney)
- executory receives statutory compensation, and
- the attorney is entitled to legal fees for representing the estate.
And the testator must sign the disclosure statement before 2 witnesses.

Question 21

What happens in NY if the attorney who drafted the will and is named executor of the estate fails to obtain a signed disclosure statement?

Answer 21

The attorney will receive only half of the statutory commissions.

Question 22

What is an “in terrorem” clause?

Answer 22

A clause in a will that says, “Anyone who objects to my will will get nothing!”

Question 23

How do most states treat in terrorem clauses when the challenge is brought in good faith?

Answer 23

The in terrorem clause is upheld UNLESS the contest was brought in good faith and with probable cause.

Question 24

How does NY treat in terrorem clauses when the contest is brought in good faith?

Answer 24

NY will fully enforce an in terrorem clause even if the claim is brought in good faith and with probable cause (subject to exceptions)

Question 25

What are the exceptions to full enforcement of in terrorem clauses in NY?

Answer 25

1. the claim is of forgery or that the will was revoked by a later will (if good faith and probable cause)
2. the claim is filed on behalf of an infant or incompetent.
3. the claim is to construe the terms of the will.
4. the claim is to object to the court’s jurisdiction.

Question 26

In NY, what can a person considering contesting a will with an in terrorem clause inspect in discovery?

Answer 26

1. persons who prepared the will
2. attesting witnesses
3. nominated executors
4. in special circumstances, the court can allow the deposition of a person with information “of potential value or relevance”

(allowing them to evaluate the circumstances underlying the drafting of the will)

Question 27

Can an in terrorem clause add that any persons investigating the formation of the will shall also be excluded?

Answer 27

Yes - the language of the will trumps the safe harbor provision for investigation.