Will Contests Flashcards
Absent suspicious circumstances, what is it conclusively presumed in regards to mistakes?
That the testator read will and intended its consequences and that the plain meaning of the will won’t be overturned by extrinsic evidence.
What is a latent ambiguity in the will?
Mis description or error not evident from looking at the will.
Is extrinsic evidence admissible to cover a latent ambiguity in the will?
Yes, to clarify meaning of testator’s words. This evidence includes statements to attorney who prepared will and facts/circumstances evidence.
What is a patent ambiguity?
It is an obvious error on the face of the will.
Is extrinsic evidence admissible to cover a patent ambiguity in the will?
Yes, extrinsic evidence is admissible, facts and circumstances evidence is admissible.
What about precatory language in conditional wills?
Generally the condition has to be satisfied but you could argue that conditional language merely reflects motive or inducement for making will.
If a joint will is a contractual will and the survivor breaches the contract by executing later will with inconsistent provisions, what prevails?
The contractual will prevails but probate new will even though will 1 as contract and impose a constructive trust in vapour of intended beneficiaries.
Why do we probate new will if there is a prior inconsistent contractual will?
Because we may have other assets in will 2 not in will 1 going to beneficiaries.
Can a contractual joint will be revoked?
Yes it can, but agreement between parties while both alive. If one dies, the estate cannot later go and change it up.
What is the required testamentary capacity?
A testator must have sufficient capacity to
1) understand nature of the act
2) know nature and approximate value of property
3) know natural object of his bounty; and
4) understand gifts he is making
Who has the burden of proving there has been undue influence?
The will contestant
What must the will contestant show to prove there has been undue influence?
1) Existence/exertion of influence
2) Effect of influence overpowering of mind/will of testator; and
3) Product of will/gift would not have happened but for that influence.
Is the fact that the person was old or unwell and that you had an opportunity to exert influence enough?
No
Where can you most certainly show an inference of undue influence?
Where someone makes a gift to one in confidential relationship and person actively preparing will
What automatically happens if a bequest has been made to a drafting attorney?
Even if no objection is filed, the surrogate’s court automatically inquiries into whether a bequest to the drafting attorney was voluntarily made. This is Putnam Scrutiny.
If an attorney is named as executor in NY what must they do?
Give written disclosure to the testator that:
1) Any person can be named as executor;
2) Executor receives statutory commission and percentage is set by statute; and
3) Attorney is entitled to legal fees for handling estate.
And testator /client must sign the written disclosure in the presence of two witnesses.
What if the drafting attorney fails to comply with the statute?
Attorney only receives half the statutory commissions.
What is a non contest clause?
If you object to will you get nothing?
Are non contest clauses given effect in New York?
Yes they are, even if there is probably cause to challenge a will.
Why do we allow non contest clauses?
Because a testator should be permitted to protect his testamentary plan and reputation against post death attack
What are exceptions to non-contest clauses?
Where will contest is claiming forgery, it is a jurisdictional challenge, proceeding to construe will.
What are the safe harbour provisions for sage harbour clauses?
A person who is considering contesting a will that contains a no contest clause may examine in discovery the following:
1) Person who prepared will;
2) Attesting witnesses;
3) The will proponents; and
4) The nominated executors.
Can a no contest clause be drafted to even preclude deposition?
Yes, recently the COA has held that this is OK.
What is a Power of attorney?
Written authorization for an agent to act on behalf of grantor of the power.
