will contests Flashcards
grounds for will to be denied admission to probate
(1) not properly executed
(2) lack of testamentary capacity
(3) undue influence
(4) fraud
(5) mistake
how to attack based on lack of testamentary capacity + burden
ATTACK:
(1) must be 18 or older
(2) mentally competent at the time of executing the will such that they:
(a) understand the nature of the act
(b) know the nature, condition, and extent of their property
(c) know the names of and their relationship to the natural objects of their bounty
(d) understand the scope and meaning of will provisions
— adjudication of incapacity and appointment of conservator is admissible and relevant to incapacity but it is not prima facie evidence of lack of testamentary capacity
BURDEN OF PROOF:
will proponent bears burden of proving testamentary capacity BUT, valid execution = presumption of capacity
= after presumption of capacity is formed, contestant must overcome it
how to attack will based on undue influence
ELEMENTS
(1) existence and exertion of influence
(2) overpowered the testator’s mind and free will
(3) produced a will (or gift in a will) that would have not been made but for such influence
PRESUMPTION:
Prove by clear and convincing evidence that the testator
(1) suffered from weakness of mind
(2) named a beneficiary with whom he stood in a confidential relationship or relationship of dependence
and
(3) previously expressed a contrary intention, OR previously expressed NO intention regarding the disposition of their property
How to attack will based on fraud
ELEMENTS
(1) false representation that speaker knows to be false
(2) intent to deceive
(3) the other party’s ignorance of the falsity
(4) reliance on the false representations that induced the party to act to their injury
PRESUMPTION OF FRAUD:
(1) drafted by a person in confidential relationship with testator
and
(2) suspicious circumstances
attack based on duress
violence is involved, threats, gun to the head, etc.
types of fraud
fraud in the execution = testator is deceived as to identity or contents of the documents such that he does not know he is signing a will
fraud in the inducement = testator knows he is making a will but contents are there due to deception / due to erroneous fact
standing to contest a will
you have a pecuniary interest that will be impaired by the will’s admission to probate
attack based on mistake
ELEMENTS
clear and convincing evidence that both the decedent’s intent and the will’s terms were affected by a mistake of fact or law, whether in expression or inducement.
WHEN EXTRINSIC EVIDENCE AVAILABLE
(1) mistake as to the nature of the instrument
(2) ambiguity in the language
no contest clause [in terroreom clause]
WHAT IT DOES: any person who contests the will forfeits their interests under the will
ENFORCEABILITY: enforceable even if contest is in good fait f
EFFECT OF SUCCESSFUL CONTEST: the will fails and so does the no-contest clause
** an action seeking interpretation of the will is not a contest
