Will Contests Flashcards
What is undue influence and what are four factors courts consider?
UI = excessive persuasion that causes another person to act or refrain by overcoming person’s free will
Factors:
1) Vulnerability of Victim
2) Influencer’s apparent authority
3) Actions or tactics used by influencer
4) Equity (fairness) of the result
Will can be invalided by whole or in part
What is evidence that could demonstrate the vulnerability of a victim re: undue influence?
Includes:
1) Incapacity
2) Illness
3) Injury
4) Age
5) Education
6) Isolation
7) Dependency on influencer
What is evidence that could demonstrate the influencer’s authority over a victim re: undue influence?
Includes
1) Fiduciary
2) Family member
3) Care provider
4) Health care or legal professional
5) Spiritual advisor
6) Expert
7) Other qualification
What is evidence that could demonstrate the influencer’s conduct over a victim re: undue influence?
Includes:
1) Control over necessaries of life, medication, and interactions with others
2) Use of affect, intimidation, or coercion
3) Initiation of changes in personal or property rights
4) Haste or secrecy in effecting such changes
What evidence do courts consider regarding the equity of the result re: undue influence?
Courts will look at:
1) Economic consequences to victim
2) Divergence from victims prior intent
3) Appropriateness of change in light of length/nature of relationship
Presumption of Undue Influence: Confidential Relationship
A presumption of undue influence arise when:
1) Principal beneficiary under a will stands in a confidential relationship with testator
2) Principal beneficiary participated in wills execution
3) Gift to beneficiary is unnatural
What are examples as to a confidential relationship re: undue influence?
1) Testator’s attorney
2) Physician/Doctor
3) Clergy member
What is the California Statutory Presumption re: undue influence?
Additional categories in California, includes:
1) Care custodians of testator who s dependent adults, if services were provided within 90 days of execution
(Does not apply to people related/living with testator)
Must be rebutted by clear and convincing evidence that it was not undue influence.
Who has standing to contest a will?
Only beneficiary’s under the current or prior will have standing to contest.
Creditors, spouses of beneficiaries, and pretermitted heirs cannot contest a will.
How can a will be invalidated by fraud?
Beneficiary misrepresents to the testator with:
1) Intent to deceive
2) Purpose to influence testator’s will
Can occur via inducement (different will than would have made under facts) or execution (character or contents of the will)
When may a conservator breach their duty to the testator?
When they act in a way that impairs their duty of care and loyalty.
Ultimately, must act in conservative’s best interest. This means communicating with the testator!
ESSAY TIP: Pursuant to a court order, may a conservator sign for a testator?
Yes!
This means that conservator need not be directed by testator to sign the will.
However, should ask if there has been a breach of care and loyalty.
