Will Contests

Question 1

Who has standing to contest a will?

Answer 1

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.

Question 1

When contesting a will, who has the burden of proof?

Answer 1

On the will contestant

Question 2

Timing and notice

Answer 2

A will contest must be filed within 120 days after the will is admitted to probate

Question 3

Grounds for contest

Answer 3

1. defective execution
2. revocation
3. lack of testamentary capacity
4. lack of testamentary intent
5. undie influence or duress
6. fraud
7. mistake

Question 5

Insane delusion

Answer 5

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.

Question 6

Undue influence

Answer 6

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

Question 7

How does one establish undue influence?

Answer 7

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

Question 8

Circumstantial evidence that must be considered when looking for undue influence

Answer 8

1. the victim’s vulnerability
2. the influence of apparent authority
3. the actions and tactics of the influencer
4. the equity of the result

the mere opporutnity to exert undue influence does not show that influence was actually exerted

Question 9

Rebuttable presumptions of undue influence

Answer 9

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)

Question 10

Statutory presumption of undue influence and fraud

Answer 10

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.

Question 11

Conclusive presumption of fraud or undue duress

Answer 11

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

Question 12

Duress

Answer 12

Like undue influence but includes harm of physical punishment

Question 13

Fraud

Answer 13

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

Question 14

Fraud in factum

Fraud in the execution

Answer 14

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

Question 15

Fraud in the Inducement

Answer 15

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)

Question 16

Remedy for fraud in wills

Answer 16

**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.

Question 17

Mistake

Answer 17

Not caused by evil conduct (i.e., fraud or duress)

Question 18

Mistake in execution (Mistake in factum)

Answer 18

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

Question 19

Mistake in inducement

Answer 19

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.

Question 20

Mistake as to contents

Answer 20

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

Question 21

Remedies for wrongful conduct

Answer 21

1. deny probate
2. constructive trust
3. tortious interference with an expectancy
4. wrongful taking or concealment of property

Question 22

Deny probate

Answer 22

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

Question 23

Constructive trust

Answer 23

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

Question 24

Tortious interference with an expectancy

Answer 24

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

Question 25

Wrongful taking or concealment of property

Answer 25

Wrongdoer is liable twice for the value of the property and may be liable for reasonable attorney’s fees and costs