Will Contests

Question 1

Mistake

Answer 1

assumption is that testator read the will and intended its consequences, thus the plain meaning of the will won’t be overturned by extrinsic evidence.

Question 2

latent ambiguity

Answer 2

a mis-description, the error is not evident by looking at the will.
In this case extrinsic evidence is admissible to clarify testator’s words.

Question 3

what if the extrinsic evidence fails

Answer 3

if extrinsic evidence does not cure the ambiguity, then the gift fails, because there is no ascertainable beneficiary

Question 4

patent ambiguity

Answer 4

an obvious error on the face of the will

facts and circumstances evidence is admissible
evidence of what testator said to attorney is admissible

not admissible– evidence of testator’s declarations to third parties

Question 5

Conditional wills

Answer 5

a will that expressly provides that it will be operative only if some condition prevails

ARGUE BOTH WAYS

Question 6

contract to make a will/ JOINT WILL

Answer 6

the will of two people in one document

Question 7

if a joint will is a contractual will and the survivor breaches the contract by executing a later Will with inconsistent provisions

Answer 7

1. we have a contractual will + a survivor breached then, probate the existing will even though written as a contract and
2. impose a constructive trust in favor of the intended beneficiaries…

Question 8

revoking a contractual will

Answer 8

this can be done while both parties to the agreement are still alive, but cannot be done on behalf of the deceased spouse.

Question 9

testamentary capacity

Answer 9

a testator must have sufficient capacity to:

1) understand the nature of the act
2) know the nature and approximate value of his property
3) know the natural object of his bounty
4) understand the dispositions and gifts he is making

Question 10

insane delusion

Answer 10

testator is generally of sound mind but has a persistent belief in supposed facts against all evidence which cause or affect her making of the will

Question 11

undue influence

Answer 11

the will contestant has the burden to prove

1) existence and exertion of an influence
2) affect of such influence must over power the mind and power of the testator AND
3) the product is a will or a gift in a will which would not have happened but for the influence.

Question 12

Putnam scrutiny

Answer 12

automatic scrutiny for gifts made to lawyers who write wills

Question 13

no-contest clause/ in terrorem clause

Answer 13

clause in a will that says if anyone objects to my will, they will get nothing.

NY gives full effect
UNLESS:
fraud or forgery
will was drafted on behalf of an infant or incompetent
a construction proceeding
objection to the jurisdiction of the court