Will Contests

Question 1

Timing + Notice of Will Contests

Answer 1

• states vary
• time - as short as a few months or as long as several yrs
• all legatees under will + all intestate heirs = necessary parties + are entitled to noticed

Question 2

Standing

Answer 2

• only interested parties have standing to contest a will
  -> interested parties = those whose interests would be adversely affected by the admission of the will
  -> includes heirs (would receive by intestacy if will invalid)
  -> also includes beneficiaries of prior wills in some states
• creditors, executors, + testamentary trustees are NOT interested parties

Question 3

Will Contests - Burden of Proof

Answer 3

• will contestant has the burden to prove the will is invalid

Question 4

Extent of Will Failure

Answer 4

• may fail partially or entirely
• if only a portion of a will is found to have been procured by undue influence, fraud, duress or mistake, only that part is void + remainder is given effect
• partial failure rare b/c the procurement typically impacts the entire disposition scheme

Question 5

General Grounds for Will Contest

Answer 5

• defective execution
• revocation
• lack of testamentary capacity
• lack of testamentary intent
• undue influence or duress
• fraud
• mistake

Question 6

Insane Delusion

Answer 6

• insane delusion = belief in facts that don’t exist + that no rational person would believe existed
• destroys testamentary capacity only if there’s a connection between the insane delusion + the property disposition
• may invalidate entire will or only a particular gift b/c will set aside only to extent that the delusion caused testamentary disposition

Question 7

Undue Influence - Basic Concept

Answer 7

To establish undue influence, contestants must establish:
- influence existed + was exerted
- effect of the influence was to overpower the mind + free will of the testator (so that the will reflects the desires of the person exerting the influence instead of the testator) AND
- resulting testamentary disposition would not have been executed but for the influence (causation)

• person CAN hound + badger someone to make a will (this doesn’t count as undue influence)

Question 8

Evidence to Prove Undue Influence

Answer 8

Direct ev seldom available -> court looks at following factors (none conclusive):
- unnatural dispositions (ex: cutting out close family)
- opportunity or access to testator
- confidential or fiduciary relationship between parties
- ability of testator to resist
- beneficiary’s involvement with the drafting or execution of the will

Question 9

Undue Influence - Circumstantial Ev

Answer 9

• circumstantial ev NOT enough to establish undue influence
• if you only have opp to influence testator, susceptibility of testator to influence due to age or poor health, OR unnatural disposition favoring some of testator’s relatives over others, it’s NOT enough

Question 10

Confidential Relationships + Undue Influence

Answer 10

Presumption of undue influence arises when:
- confidential relationship between testator + beneficiary (testator placed an unusual amount of confidence in the beneficiary, and relied on the beneficiary) AND
- beneficiary was active in procuring, drafting or executing the will
- third element in some states - provisions of the will appear to be unnatural + favor the person who allegedly exercised undue influence

• burden of proof shifts to will proponent once these elements are shown

Question 11

Confidential Relationships - Spouses + Undue Influence

Answer 11

• NO presumption of undue influence for spouses (even though they have confidential relationship) UNLESS spouse exerted influence over testator in such a manner that it:
  1) overpowered free will of testator AND
  2) resulted in a disposition reflecting the desires of the spouse exerting the influence

Question 12

Attorney as Drafted and Beneficiary

Answer 12

• if attorney who drafted will is also a beneficiary, many states void the gift to the attorney unless the testator + the attorney are closely related
• attorney may also be in violation of ethical rules

Question 13

Duress

Answer 13

• a form of undue influence but connotes violent conduct such as the threat of physical harm

Question 14

Fraud + Wills

Answer 14

• successful contest on grounds of fraud requires that testator have been willfully deceived as to:
  1) the character or content of the instrument
  2) extrinsic facts that would induce the will or a particular disposition OR
  3) facts material to a disposition
• if a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made

Question 15

Elements of Fraud

Answer 15

• false representation made to the testator
• knowledge of falsity by person makng the statement
• testator reasonably believed the statement
• statement caused the testator to execute a will or make a particular disposition that the testator wouldn’t have made but for the misrepresentation

Question 16

Fraud in the Execution

Answer 16

• aka fraud in the factum
• misrepresentation as to the identity or contents of the instrument
• i.e. testator did not know the document was a will or what it contained
• lack of testamentary intent

Question 17

Fraud in the Inducement

Answer 17

• testator knows they are executing a will + what it contains, BUT deceived as to some extrinsic fact + makes the will or gift based on that fact
• will or particular gifts affected by the fraud must be set aside

Question 18

Mistake - Basic Concept

Answer 18

• any error NOT caused by evil conduct (no fraud or undue influence)

Question 19

Mistake in Execution

Answer 19

• aka mistake in the factum
• testator in error re identity or contents of the instrument + lacks testamentary intent
• extrinsic ev is admissible to show that a testator did not know that the instrument they were signing was a will, b/c existence of testamentary intent is at issue
• if testator mistakenly signs wrong will, some courts deny relief, but better view = courts grant relief where nature of mistake is obvious

Question 20

Mistake in Inducement

Answer 20

• NO RELIEF
• testator mistaken as to some extrinsic fact + makes their will based on that erroneous fact
• if mistake involves reasons a testator made their will a particular way + the mistake was not fraudulently induced, court normally doesn’t grant relief (unless mistake appears on face of will)

Question 21

Reformation for Mistake Under the UPC

Answer 21

• under UPC, court may reform a will, even if the will is unambiguous, to conform to testator’s intent if it is proven by clear and convincing ev that testator’s intent + terms of the will were affected by a mistake of fact or law
• includes mistakes involving both expression of terms + inducement to make the will or any of its provisions

Question 22

No-Contest Clauses - Basic Concept

Answer 22

• clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will + lose
• goal = scare a beneficiary who would get more money by intestacy into not contesting for fear of getting nothing if the contest fails

Question 23

No-Contest Clauses - Majority Rule

Answer 23

• no forfeiture if probable cause for contesting will
  -> means the clause will be enforced unless beneficiary had probable cause