Will Contests Flashcards
Who has standing to contest a will?
- Heirs (because they would stand to get more via intestacy)
- Beneficiaries of PRIOR wills (because they would stand to get more if the new will is invalid)
Who has the burden of proof in a will contest?
The person contesting the will has the burden of proving the will is invalid
What are the five grounds for contesting a will?
Challenger can argue that Testator:
- Failed to meet the elements of a valid will;
- Made the will under insane delusions;
- Made the will under undue influence;
- Made the will under duress; OR
- Made a mistake in will’s creation
What are the four ways a will fails to meet the elements of a valid will?
Challenger can state that the Testator or will lacks:
- Legal capacity;
- Testamentary capacity;
- Testamentary intent; OR
- Necessary formalities
What is insane delusion w/r/t contesting a will?
A persistent belief in supposed facts that are against all evidence, probability, and control.
(Insane delusion destroys T’s capacity ONLY IF there is a connection between the delusion and the property disposition! i.e., Delusion MUST impact the disposition in the will.)
What must a contesting party prove to show T was under undue influence when making the will?
Person seeking to prove undue influrnce must prove:
- The influence existed and was exerted;
- The influence overpowered T’s mind; AND
- T therefore executed a will which he would not have otherwise executed (i.e., causation element).
How can a person prove undue influence?
- Direct evidence (rarely available)
- Circumstantial evidence
- Fiduciary relationship
- Drafting attorney named as beneficiary
- Drafting attorney is executor
What are five factors that may help show circumstantial evidence that speaks to undue influence w/r/t contesting a will?
- Unnatural disposition (e.g., cutting out family members)
- Opportunity to influence T (e.g., access to T)
- Confidential/fiduciary relationship with T
- Ability of T to resist influence
- Beneficiary was involved with drafting or execution of the will
[This is a FACTOR test! Any one MAY be sufficient, but laregly fact-dependant]
What is the rule on fiduciary relationships w/r/t showing undue influence for purposes of contesting a will?
A will contestant can satisfy the inference of undue influence if:
- The will makes a gift to a person in a confidential relationship with T, AND
- That person was active in the drafting/execution of the will.
What is Putnam Scrutiny?
The Court will AUTOMATICALLY look into any will where there is a bequest made to a drafting attorney
What must an attorney do if he is BOTH the drafting attorney AND named as the executor of T’s estate?
Attorney must give WRITTEN notice to Testator that:
- Any person can be named executor, not just an att’y;
- The executor receives a statutory commission; AND
- Att’y will be entitled to legal fees for representing the estate.
(T must sign the written notice in the presence of two witnesses)
(If Att’y fails to comply with these requirements, his statutory commission is cut by 50%)
What is DURESS w/r/t contesting a will
Like undue influence, but connotes violent conduct, e.g., T forced to sign will under threat of physical harm
What is MISTAKE w/r/t contesting a will?
T’s error when there was no conduct on the part of another party to cause the mistake to arise
What are the two types of mistakes w/r/t contesting a will?
- Mistake in the factum/execution (T was wrong about the identity or contents of the instrument so lacked the necessary testamentary intent)
- Mistake in inducement (T is mistaken about some extrinsic fact and makes a will based on that fact)
What is an in terrorem/no contest/forfeiture provision?
Clause that “scares” beneficiary who would get more through intestacy into not contesting the will for fear of getting nothing if the challenge fails.
