Will Contests Flashcards
Who has standing to contest a will?
Only interested parties have standing.
Interested parties are those whose interests would be adversely affected by the administration of the will.
Creditors, executors, and testamentary trustees are not interested parties.
When contesting a will, who has the burden of proof?
On the will contestant
Timing and notice
A will contest must be filed within 120 days after the will is admitted to probate
Grounds for contest
- defective execution
- revocation
- lack of testamentary capacity
- lack of testamentary intent
- undie influence or duress
- fraud
- mistake
Insane delusion
Belief in facts that do not exist and that no rational person would believe existed.
A will can be set aside only if there is a nexus between the insane delusion and the property disposition.
Undue influence
Excessive persuasion that causes another to act or refrain from acting by overcoming that person’s free will; results in a property disposition the person would not otherwise have made.
See elements card for additional info
How does one establish undue influence?
Must establish:
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 the testator would not have executed but for the influence (causation)
Can be established throuhg direct evidence or circumstantial evidence
Circumstantial evidence that must be considered when looking for undue influence
- the victim’s vulnerability
- the influence of apparent authority
- the actions and tactics of the influencer
- the equity of the result
the mere opporutnity to exert undue influence does not show that influence was actually exerted
Rebuttable presumptions of undue influence
A presumption of undue influence, which shifts the burden of proof, arises when:
1. a confidential relationship* existed between the testator and the beneficiary
2. the beneficiary actively participated in some way in procuring or drafting the will; and
3. the beneficiary uduly benefits form the instrument; that is, provisions of the will appear to be unnatural and favor the person who allegedly exercised undue control
*includes a relationship bw attorney and client and doctor and patient; a relationship in which one person relied heavily upon and placed more than a normal amount of confidence in another also suffices (i.e., caregiver)
Statutory presumption of undue influence and fraud
In CA, by statute, there is a preumption of undue influence when the donative transfer is to:
1. the drafter of the instrument
2. someone in a fiduciary relationship with the transferor
3. a care custodian if the instrument was executed during substantial health services (within 90 days)
4. a care custodian who commenced a marriage, cohabitatio, or domestic partnership if the care occured within 90 days of the transfer OR the cohabitation occured within 6 months of when the instrument was executed.
Conclusive presumption of fraud or undue duress
Presumption is conclusive to persons who:
1. drafted the will
2. are the drafters relatives
3. persons living with the drafter
4. persons employed by the drafter
Duress
Like undue influence but includes harm of physical punishment
Fraud
A gift is invalid if it resulted from fraud. The elements of fraud are:
1. false representation made to the testator
2. knowledge of falsity by person making statement
3. testator reasonably believed the statement
4. false statement caused the testator to execute a will the testator would not have made but for the misrepresentation
Testator must have been deceived and acted in reliance on the fraud
Fraud in factum
Fraud in the execution
Testator was deceived as to the identity of the contents of the instrument (i.e., testator was not aware the instrument was a will)
So, no testamentary intent
Fraud in the Inducement
The testator knows they are executing a will and what it contains, but the testator is deceived as to some extrinsic fact
Example: Son convinces dying father that daughter is using drugs and stealing as a way to convince the father to change his will. Father knows he’s changing his will, but he has been deceived as to an extrinsic fact (i.e., the behavior of his daughter)
Remedy for fraud in wills
**The tainted portions of the will are denied in probate and constructive trusts are established
A constructive trust is a remedy used by a court to compel a person who has property they are not justly entitled to to transfer it to the intended beneficiary as determined by the court.
Mistake
Not caused by evil conduct (i.e., fraud or duress)
Mistake in execution (Mistake in factum)
Testator is in error regarding the identity or contents of the instrument and this lacks testamentary intent.
Extrinsic evidence is admissible to show that the testator was unaware of the nature of the instrument they signed
Mistake in inducement
The testaror is mistaken as to some extrinsic fact; generally no remedy is available
Courts generally have no power to vary or modify the terms of a will or reform it on the grounds of mistake in the absence of evil conduct
However, there is relief if mistake and the disposition the testator would have made are apparent on the face of the will.
Mistake as to contents
An unambigious will may be reformed if there is clear and convincing evidence that the will contains a mistake and the evidence establishes the testator’s actual specific intent at the time the will was drafted.
Extrinsic evidence is admissible to establish ambiguities and clarify those ambiguities
Remedies for wrongful conduct
- deny probate
- constructive trust
- tortious interference with an expectancy
- wrongful taking or concealment of property
Deny probate
If the evil activity permeates the entire will, the entire will is denied probate; if only certain provisions are tainted, those can be set aside and the test will be probated
Constructive trust
If an evil activity prevents a person from executing a will, the court might impose a constructive trust on the property in favor of the intended beneficiary
Tortious interference with an expectancy
Plaintiff must prove that:
1. the plaintiff had a reasonable expectation of receiving an interest from the decedent;
2. but for the defendants interference, the plaintiff would have received the interest
3. the defendant had knowledge of plaintiff’s expectancy and deliberately interfered with it
4. the interference was wrongful/tortious in its own right
5. the interference damaged the plaintiff
Available only if there is no adequate remedy in probate
Wrongful taking or concealment of property
Wrongdoer is liable twice for the value of the property and may be liable for reasonable attorney’s fees and costs
