Will Contests Flashcards
Testamentary Capacity
> Rule: Must be at least 18 years old with sound mind
A will is invalid of T lacks sufficient mental capacity at the time of the will’s execution to understand the nature of act, understand and recollect the nature and character of his property, or remember/understand his relationship with living descendants, spouse, or others affected by the will.
> Lack of capacity may be shown by a deficit in alertness, attention, information processing, thought processes, or ability to modulate mood
> Insane Delusion: a belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary, requires but for causation to invalidate.
Testamentary Capacity
> Rule: Must be at least 18 years old with sound mind
A will is invalid of T lacks sufficient mental capacity at the time of the will’s execution to understand the nature of act, understand and recollect the nature and character of his property, or remember/understand his relationship with living descendants, spouse, or others affected by the will.
> Lack of capacity may be shown by a deficit in alertness, attention, information processing, thought processes, or ability to modulate mood
> Insane Delusion: a belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary, requires but for causation to invalidate.
Undue Influence
> Excessive persuasion that causes another to act or refrain from acting by overcoming that person’s free will, resulting in inequity
Rule: mental or physical coercion exerted by a third party on T with the intent to influence T such that he loses control of his own judgment, causing an unnatural result
> Factors considered by CA Cts: vulnerability, apparent authority, actions/tactics of influencer, equity of result
> Traditional, Majority rule elements: Susceptibility, motive, opportunity, and causation; the burden is on the contestant to show the existence and exertion of influence and that the influence overpowered the mind/will of T.
> Presumption of Undue Influence: when the beneficiary stands in a confidential relationship to T, participated in executing the will, and gift to the beneficiary was unnatural
CA Statutory Presumption: Any will that makes a gift to the drafter is invalid if the person who transcribed the will was in a fiduciary relationship with the testator at the time of creation or a care custodian who married a dependent adult testator while or within 90 days after providing services to that dependent adult if the instrument was executed less than six months after the marriage commenced, any custodian of a dependent adult, or a partner or employee of the law firm of the drafter or transcriber
-N/A to T’s relatives or those living with T or to a will reviewed by an independent atty
Undue Influence Test CA
Undue influence requires excessive persuasion that causes another to act or refrain from acting by overcoming that person’s free will, and results in inequity.
- Pleading, cajoling, nagging, or threatening the testator does not constitute undue influence.
Three tests: Prima facie, common law presumption of undue influence, and statutory presumption of fraud or undue influence.
Prima Facie
To establish undue influence, the contestants must prove that: (1) influence was exerted on the testator, (2) the effect of the influence was to overpower the mind and free will of the testator, (3) the product of the influence was a will that would not have been executed but for the influence.
> Circumstantial evidence includes: the victim’s:
- vulnerability
- the influencer’s apparent authority( relationship with victim)
- the actions and tactics of the influencer( controlling the victim’s access to necessities or people, use of affection or intimidation, initiating changes to the victim’s property or personal rights,
- the equity of the result
Common Law Presumption of Undue Influence
Burden may shift to will proponent to prove that the will was not induced by undue influence if a presumption of undue influence is raised by:
- a confidential relationship that existed between the testator and the beneficiary who is alleged to have exercised undue influence
- the beneficiary actively participated in some way in procuring or drafting the will or in some other significant activity relating to execution of the will
- the beneficiary unduly benefits from the instrument i.e. provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence
Fraud
> must be present when will was executed, misrepresentation must be made by a beneficiary with both the intent to deceive T and the purpose of influencing the testamentary disposition: often remedied by constructive trust
> Fraud in the inducement: knowingly false representation that causes the testator to make a different will than he would have otherwise made; invalid only if T would have acted differently had he known the truth
> Fraud in the execution: fraud as to the very nature of the instrument or its contents.
