Will Contests

Question 1

Mistake

Answer 1

absent suspicious circumstances, it is conclusively presumed that T read his will and intended its consequences

so plain meaning of the will will not be overturned by extrinsic evidence

Question 2

Latent Ambiguity- definition

Answer 2

a latent ambiguity is a misdescription; error is not evident by looking at will

Question 3

Latent ambiguity- extrinsic evidence?

Answer 3

Admissible to clarify or find meaning of the words

(i) facts and circumstances evidence is admissible
(ii) evidence of T’s declarations of intent to third parties is admissible
(iii) evidence of T’’s statements to the attorney who prepared the will is admissible

Question 4

Latent ambiguity- if extrinsic evidence does not cure the ambiguity

Answer 4

gift fails b/c there is no ascertainable beneficiary

Question 5

Patent ambiguity- definition

Answer 5

obvious error on the face of the will

Question 6

patent ambiguity- extrinsic evidence?

Answer 6

Is admissable….

(i) facts and circumstances evidence is admissible
(ii) evidence of T’s declarations of intent to third parties is NOT admissible***
(iii) evidence of T’’s statements to the attorney who prepared the will is admissible

Question 7

Conditional wills

Answer 7

expressly provides that it will be operational only if some condition is met

• argue both ways!
• conditional will
• reference to event (condition) merely reflects his motive or inducement for making a will

Question 8

Definition of a joint will

Answer 8

will of 2 people in one document

Question 9

joint will- contract to not revoke

Answer 9

A K to make a will or not revoke a will ca only be established by an express statement that the wills provisions are intended to constitute a binging K between parties

Question 10

Join wills- breach of contract to not revoke & execution of a later will

Answer 10

two steps:

(1) probate new will eve though will #1 is a written K
(2) impose a constructive trust in favor of intnded beneficiaries

Question 11

Testamentary capacity reqs

Answer 11

Reqs:

(1) understand the nature of the act;
(2) needs to know nature & approximate value of his property;
(3) know natural object of his bounty; AND
(4) has to understand dispositions he was making.

Requires less capacity than for any other legal instrument
even if adjudicated incompetent, can find that T executed will during lucid interval

Question 12

Insane Delusion

Answer 12

T is generally of sound mind, but has a persistent belief in supposed facts that are against all evidence, probability, and control, which cause or effect T’s testamentary capacity

Question 13

Undue Influence- definition

Answer 13

T has testamentary capacity but is subject to, and controlled by, a dominant influence of power

Question 14

Undue influence- Reqs

Answer 14

Will contestant has burden of proving:

(i) existence and exertion of an influence;
(ii) affect of such influence was to overpower the mind & will of T; AND
(iii) product is a will or a gift which would not have happened but-for that influence.

Basically, Will produced is essentially not one of T but one of the influencer

Question 15

Evidence of Undue Influence- insufficient alone evidence

Answer 15

evidence that is insufficient on its own

(i) opportunity to exert power
(ii) susceptibility of influence b/c of age or illness
(iii) unequal distributions

Question 16

Inference of undue influence

Answer 16

(1) will makes a gift to one in a confidential relationship; AND
(2) person was active in preparing will

Question 17

Bequests to drafting attorney

Answer 17

Automatic inquiry by Surrogate Court into whether a bequest to the drafting attorney was voluntarily made (known as Putnam scrutiny)
-no objection needed

Question 18

Appointments of drafting attorney

Answer 18

(i) a drafting attorney who is named as executor must given written disclosure to T that:
(A) any person can be named executor, not just an attorney;
(B) executor receives statutory commission; AND
(C) Attorney will also be entitled to legal fees for representing the estate
(ii) T must sign the written disclosure in the presence of 2 witnesses

(iii) If drafting attorney fails to comply, he receives only 1/2 statutory commissions

Question 19

No-Contest (“In Terrorem”) clauses- definition

Answer 19

A clause in a will that says “if anyone objects to my will, then they get nothing”

Question 20

No-Contest (“In Terrorem”) clauses- given effect?

Answer 20

Clause is given full effect even if there was probable cause to challenge a will

Exceptions:

(1) claiming forgery or that the will was revoked by a later will, with probable cause for claim;
(2) will contest is filed on behalf of an infant or an incompetent;
(3) will contest as constructive proceeding to construe terms;
(4) Objection to jurisdiction of the court

Question 21

No-Contest clauses- Safe harbor Provisions

Answer 21

A person who is considering challenging a will that contains a no-contest clause may examine IN DISCOVERY-

(i) person who prepared the will;
(ii) attesting witnesses;
(iii) will proponents;
(iv) nominated executors.

Special circumstances the court has discretion to allow the deposition of a person with information of potential value or relevance BUT no contest clauses can be drafted to include these kinds of inquiries as well!