Will Contests Flashcards
Who has standing to challenge a will?
Only interested parties (someone who will receive a financial benefit or someone left out of the will who would have inherited by intestate succession).
How to challenge if the testator has capacity.
Challenging whether testator had ability to know AT THE TIME OF WILL EXECUTION ONLY.
Ask > Did the testator know:
Why: The nature of the act
What: nature and character of her property
Who: the natural objects of her bounty
How: plan of the attempted disposition
What is an insane delusion?
Rule: a false belief to which the testator adheres in spite of all reason and evidence to the contrary.
What is undue influence?
Rule: A coerced relationship > When contestant alleges that a 3rd party effectively controlled the testator’s decision-making process.
Contestant bears burden of initial proof:
(1) Beneficiary received a substantial benefit under the will
(2) Beneficiary had a confidential relationship with the testator
(3) The testator had a weakened intellect at the time of execution.
Most courts only invalidate portions that are infected by undue influence.
What is fraud?
Rule: The contestant bears the burden of showing that the beneficiary engaged in an unlawful misrepresentation at the time of the conveyance.
Elements: beneficiary made misrepresentation with
– The intent to deceive the testator, and
– The purpose of influencing the testamentary disposition.
What are the 2 types of fraud?
(a) Fraud in the inducement - misrepresenting important factors (i.e. telling testator that daughter said she can’t wait until she dies so she can spend her inheritance on a vacation)
(b) Fraud in the execution - intentionally misleading about the contents of a document (i.e. making it seem like the signature is just for a birthday card)
* Remedy: a constructive trust
What is the slayer rule?
A bar to succession when a beneficiary murders the decedent, if so, they are treated as if he predeceased the testator.
*NOTE: Beneficiary who has valid POA who makes life/death decisions is not barred from inheriting under this rule.
What is an advancement?
Rule: Lifetime gift to children may be an advancement. If advancement, it affects child’s disbursement from Will.
Under common law, any lifetime gift was considered an advancement.
Under UPC, a gift is only an advancement if a writing indicates that it is.
What is the hotchpot analysis in calculating how to deduct an advancement?
How are omitted children calculated?
When a child is born after the creation of the will and the testator then dies without revising his will, a presumption is created that the omission of the child was accidental.
How are adopted children calculated?
Adoption curtails all statutory inheritance rights between the natural parents and the child. Although the adoption of Son by Aunt severs his statutory inheritance rights, Son could argue that John intended to bequeath him a gift via this provision of the will, which was executed before Son was born.
