Will Contests

Question 1

who has standing to contest a will

Answer 1

only interested parties (heirs, beneficiaries of prior wills)

creditors, executors, and testamentary trustees are not interested parties

Question 2

who has burden of proof for will contests

Answer 2

the will contestant

Question 3

required timing/notice of will contests

Answer 3

must be filed w/in 120 days after will is admitted to probate

Question 4

outcome of successful will contest

Answer 4

will may fail either partially or entirely

Question 5

failure to meet elements of valid will

Answer 5

includes lack of legal capacity, testamentary capacity, testamentary intent, or necessary formalities

Question 5

grounds for will contests

Answer 5

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

Question 6

insane delusion

Answer 6

distinct form of incapacity - belief in facts that do not exist and that no rational person would believe existed

*must be a nexus between insane delusion and property disposition

Question 7

undue influence

Answer 7

1) excessive persuasion that causes another to act or refrain from acting,
2) by overcoming that person’s free will, and
3) results in a property disposition the person would not otherwise have made

Question 8

evidence to prove undue influence

Answer 8

usually need to prove by circumstantial evidence (direct evidence seldom available). factors to consider:
1) victims vulnerability
2) influencers apparent authority
3) action and tactics of the influencer
4) equity of the result

Question 9

common law rebuttable presumption of undue influence

Answer 9

presumption arises when:
1) confidential relationship existed between testator and beneficiary (but not spouse or DP)
2) beneficiary actively participated in some way in procuring or drafting the will; and
3) beneficiary unduly benefits from the instrument

Question 10

CA statutory presumption of undue influence

Answer 10

CA presumes that donative transfer to certain people is fraud or undue influence, including:
1) drafter of instrument,
2) person who transcribed or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed
3) a care custodian of a dependent adult transferor if instrument executed during provision of substantial and ongoing health or social services or within 90 days before or afterwards
4) a care custodian who got married/cohabitated/DP with dependent while providing services or within 90 days if transfer occurred or instrument executed less than 6 months after relationship commenced

Presumption is conclusive with respect to gifts to drafters, drafter’s relatives, persons living with drafter, and persons employed by drafter

Question 11

duress

Answer 11

like undue influence but connotes violent conduct such as threat of physical harm

Question 12

fraud

Answer 12

elements:
1) false representation made to testator
2) knowledge of falsity by person making statement
3) testator reasonably believed statement
4) false statement caused the testator to execute a will the testator would not have made but for the misery

fraud must be perpetrated by the beneficiary; requires willful deceit as to instrument or extrinsic facts

any gift resulting from fraud is invalid

Question 13

types of fraud

Answer 13

fraud in factum - fraud in execution:
- testator deceived as to identity or contents of instruments (did not know it was a will or what it contained)
- lack of testamentary intent

fraud in inducement:
- testator knows it is a will and its contents, but is deceived as to some extrinsic fact and makes the will or a gift based on that erroneous fact

Question 14

fraudulent prevention of will

Answer 14

court may impose constructive trust on heirs, even innocent heirs, but some courts will not grant relief

Question 15

remedy for fraud in will

Answer 15

tainted portions are denied probate

Question 16

types of mistake in wills

Answer 16

(error not caused by evil conduct)

mistake in factum - mistake as to identity or contents; lacks testamentary intent
- EE admissible to show that testator was unaware of nature of the instrument they signed

mistake in inducement - no relief unless mistake on face of will

mistake as to contents - reformation
- unambiguous will may be reformed to conform to the testator’s intent if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted

Question 17

remedies for wrongful conduct

Answer 17

1) deny probate
2) constructive trust
3) wrongful taking or concealment - liable for twice the value of property and may be liable for reasonable attorney fees and costs
4) tortious interference w/ an expectancy

For (4), P must prove that:
- P had reasonable expectation of receiving an interest from decedent
- but for interference, P would have received
- D had knowledge of P’s expectancy and deliberately interfered
- interference was wrongful/tortious in its own right (e.g., fraud, undue influence)
- interference damaged P
Conduct must be directed at decedent, not P
Available only if no adequate probate remedy

Question 18

no-contest clause

Answer 18

provision in testamentary interest which, if enforced, causes beneficiary to forfeit right to take under protected instrument. goal is to scare beneficiary who would get more by intestacy into not contesting for fear of getting nothing if it fails

CA: court will not enforce if contestant had probable cause to file contest