Will Contests

Question 1

What are grounds for will contest?

Answer 1

Improper execution

Lack of testamentary capacity

Undue influence

Fraud

Mistake

Question 2

Who has the burden of proof for claim of lack of testamentary capacity?

Answer 2

Proponent of the will has burden of showing capacity

Proof that will was validly executed gives presumption of capacity

Question 3

What is the test for undue influence?

Answer 3

Existence of influence

Overpowered T’s mind and free will

Will would not have been made but for the influence

Question 4

When is there a presumption of undue influence?

Answer 4

T suffered from weakness of mind

Named beneficiary who had T’s confidence or dependence

T had previously expressed contrary intent to dispose of property or no intent

Question 5

What are the elements of fraud?

Answer 5

False representations speaker knows to be false

Intent to deceive

Other party is ignorant to falsity

Reliance on false representations that induced party to act

Question 6

Are No Contest clauses upheld in VA?

Answer 6

Yes.

Question 7

Does an action seeking interpretation of a will trigger a no contest clause penalty?

Answer 7

No

Question 8

What if the guardian for a minor contests a will with a no contest clause?

Answer 8

Disinherited like anyone else

Question 9

Can a will be contested on the grounds of mistake of law?

Answer 9

Yes. If the will was made with reliance on facts or law in the contents of a will or the motivation to create the will