Will Contests

Question 1

Procedure of Will Contest

Answer 1

Must be filed within 120 days after will is admitted to probate

Only INTERESTED PARTIES have standing to contest a will

Burden of Proof is on will contestant

If only portions are invalid, only that part is void and the remainder is still given effect

Question 2

Testamentary Capacity

Answer 2

Age – must be 18

Must have the ability to understand the nature of his act, the nature and extent of his property, and the persons who are the natural objects of his bounty

Determined at the time the will is EXECUTED

Question 3

Insane Delusion

Answer 3

Even if testamentary capacity, may have insane delusion that may invalidate a will.

Belief in facts that do not exist and that NO RATIONAL PERSON would believe existed. Can be set aside only if the delusion CAUSED the disposition

Question 4

Undue Influence

Answer 4

(1) influence was exerted on the testator, (2) the effect of the influence was to overpower the mind and free will of the testator, and (3) but for the influence, the will would have been different

Question 5

Circumstantial Evidence

Answer 5

undue influence is usually proven by circumstantial evidence

Court may consider victim’s vulnerability, influencer’s apparent authority, the actions and tactics of the influencer, and the equity of the result

Question 6

Common Law presumption of undue influence

Answer 6

Shifts burden of proof. Arises when

(1) a confidential relationship existed between the testator and a beneficiary; (includes normal confidential rltnsps and those where one person relies heavily upon another)
(2) the beneficiary actively participated in some way in procuring or drafting the will; AND (presence, recommendations, instructions, knowledge, etc.)
(3) the beneficiary unduly benefits from the instruments (provisions seem “unnatural”)

Question 7

Statutory Presumption of Undue Influence

Answer 7

California presumes that a transfer to certain people is the product of fraud or undue influence:

(1) the DRAFTER of the instrument; (2) a person in a FIDUCIARY RELATIONSHIP with the transferor who TRANSCRIBED the instrument; (3) a CARE CUSTODIAN of a dependent adult if executed while services were rendered or within 90 days after

Question 8

Fraud

Answer 8

Any gift resulting from fraud is invalidated. For a gift to fail, testator must have in fact been deceived and acted in reliance on the fraud

Could be fraud in the execution (misrepresentations about contents of an instrument) or fraud in the inducement (misrepresentation of facts that induce)

Question 9

Mistake in execution of will

Answer 9

extrinsic evidence admissible to show mistake as to what she signed

Relates to testamentary intent

Question 10

Mistake as to contents

Answer 10

Where a provision in the will has been icnldued by mistake, some courts admit the will w/o the provision

Unclear whether the whole provision must be struck

Question 11

Ambiguities

Answer 11

Extrinsic evidence admissible to explain ambiguities

CA rejects patent/latent distinction. Any ambiguity may be explained by extrinsic evidence

Question 12

No Contest Clause

Answer 12

Clause that would cause a beneficiary to forfeit her right to take if brings a challenge

in CA, no contest clauses are strictly construed and may be applied only in these circumstances:

(1) a direct contest brought without PROBABLE CAUSE; (2) a claim that the transferor does NOT own the property and thus has no right to transfer it; and (3) a creditor’s claim. Clause must expressly provide for the last 2

Thus, will not be enforced against a contestant if there is PROBABLE CLAUSE.