Will Contests

Question 1

Who has standing to challenge a will?

Answer 1

A person has standing if they are:

1. A beneficiary;
2. Should be a beneficiary;
3. Would have financially benefited under intestate succession.

Question 2

What is required for testamentary capacity?

Answer 2

The testator must know:
(1) the nature and
extent of his property;

(2) the natural objects of his bounty
(i.e. relatives and friends); AND

(3) the disposition that he is making of that property.

Question 3

When does undue influence occur?

Answer 3

When a person exerts influence that
overcomes a testator’s free will and judgment.

Question 4

What is required to show undue influence?

Answer 4

Prima facie case established where:

1. Testator has a weakness;
2. Wrongdoer had access & opportunity;
3. Wrongdoer actively participated in making the will;
4. There is an unnatural result.

Question 5

What was required at common law to prove undue influence?

Answer 5

1. Confidential relationship.
2. Susceptibility.
3. Unnatural result.

Question 6

May a will be challenged for fraud?

Answer 6

Yes.

Question 7

What are the elements to show fraud in the will context?

Answer 7

1. Knowing material misrepresentation of fact;
2. With intent to induce reliance;
3. Testator relies to detriment.

Question 8

What is fraud in the inducement?

Answer 8

Occurs when a person
deceives a testator regarding facts related to the instrument.

Question 9

What is fraud in the execution?

Answer 9

When a person deceives
a testator regarding the nature of the document being signed.

Question 10

Is a no-contest clause valid?

Answer 10

Yes.

Question 11

Under what circumstances will a court not enforce a no-contest clause?

Answer 11

Where there is probable cause to challenge the will.

Question 12

What are examples of probable cause to challenge a will?

Answer 12

Fraud;

Will was revoked;

The person is a minor or incompetent;

The person is claiming the court lacks jurisdiction;

The contestant is merely asking court to interpret the terms.

Question 13

Will a court ever modify a will due to mistake?

Answer 13

Yes.

Question 14

What is the burden of proof to modify a will due to mistake?

Answer 14

Clear and convincing evidence.

Question 15

How can a contestant overcome the presumption of the right of survivorship in a bank account?

Answer 15

By showing that
the account was set up merely for the convenience of the
parties.

Question 16

Can a will change a life insurance beneficiary?

Answer 16

No.

Question 17

Are inter vivos gifts subject to probate or intestacy rules?

Answer 17

No.