Will Contests

Question 1

What are the grounds for contesting the validity of a will?

Answer 1

1. Defective execution
2. Revocation
3. Lack of testamentary capacity
4. Lack of testamentary intent
5. Undue influence or duress
6. Fraud
7. Mistake

Question 2

What are the elements to prove undue influence?

Answer 2

1. Influence existed & was exerted,
2. Effect of influence was to overpower the mind and free will of the testator,
3. Resulting testamentary disposition would not have been executed but for the undue influence.

Question 3

When does a presumption of undue influence arise?

Answer 3

1. There is a confidential relationship between the testator and a beneficiary,
2. The beneficiary was active in the drafting/execution of the will, and
3. Unnatural result that favors the undue influencer occurred.

If the presumption is shown, the burden shifts to the proponent of the will to prove that it was not induced by undue influence.

Question 4

What are the elements of fraud?

Answer 4

1. Person knowingly makes a false representation to the testator,
2. Testator reasonably relied on the statement, and
3. But for the misrepresentation, particular disposition would not have occurred.

Question 5

What is fraud in the factum?

Answer 5

Misrepresentation as to the identity or contents of the instrument – is a lack of testamentary intent.

Question 6

What is fraud in the factum?

Answer 6

Misrepresentation as to the identity or contents of the instrument – is a lack of testamentary intent.

Question 7

What is fraud in the inducement?

Answer 7

Testator is deceived as to some extrinsic fact and makes will/gift based on that fact.

Question 8

Is relief permitted for mistake in the execution of a will?

Answer 8

Yes, extrinsic evidence is allowed to show evidence of mistake.

Question 9

Is relief permitted for a mistake in the inducement of a will?

Answer 9

No, unless the mistaken inducement appears on the face of the will.

Under UPC, reformation may be allowed if proven by clear & convincing evidence that testator’s intent/will terms were affected by mistake of law/fact.

Question 10

What is a no-contest clause?

Answer 10

Provides that a beneficiary forfeits their interest in the estate if they contest the will and lose.

Question 11

What are the majority/minority rules regarding no-contest clauses?

Answer 11

Majority: valid, unless probable cause for contesting will.

Minority: full effect, no matter what.

Question 12

Who bears the burden of proof when contesting a will?

Answer 12

The will contestant.