Will Contests

Question 1

Undue Influence

Answer 1

Will contestants have the burden of proof. To establish undue influence, the contestants must show:
1. influence was exerted on the testator;
2. the effect of the influence was to overpower the mind and free will of the testator, and
3. the product of the influence was a will that would not have been executed but for the influence.
A party’s opportunity to exert influence and the testator’s susceptibility to influence are insufficient to establish undue influence.
A presumption of undue influence arises when:
1. there is a confidential relationship between the testator and the beneficiary-influencer,
2. the beneficiary participated in procuring or drafting the will, and
3. the provisions of the will appear to be unnatural and favor the person who allegedly exercise undue influence.
Once elements of the presumption are shown, the burden shifts to the proponent of the will to prove that it was not induced by undue influence. A will is void if execution is procured by undue influence; if only a part of the will was so procured, only that part is void, and the remainder of the will is given effect.

Question 2

Fraud

Answer 2

Where the execution of a will or the inclusion variant of a particular gift is the result of fraud, the wheel or the gift is invalid. To show fraud, the will contestant must show that

1. there was a knowingly false representation of material fact;
2. the representation was made to induce the testator to write a will in a particular way; and
3. the testator reasonably believed and relied on the statement in making the will.

Question 3

No-contest clause

Answer 3

In most states and under the UPC, a no – contest clause is enforceable, but the beneficiary will not forfeit the legacy if the court finds that he challenged the will in good faith and on the basis of probable cause. The forfeiture provision is given effect only if the beneficiary had no reasonable bases for contesting the will.