Will Contests Flashcards
On what grounds may a will be contested?
- Defective execution
- The will was revoked
- The testator lacked testamentary capacity
- The testator lacked testamentary intent
- The will or the gifts are the product of undue influence
- The will or gift therein is the product of fraud
- The will or a gift therein was the product of mistake
In most states, when must a will contest be filed with the probate court?
Within 6 months after the will is admitted to probate.
Who can contest a will?
Only interested parties, i.e. parties that have a direct interest in the estate that would be adversely affected by the admission of the will to probate.
Do creditors have standing to contest a will?
No. But, under property law they can collect whether or not they contest in probate court.
What parties are necessary to the probate procedure and what is the effect of being a necessary party?
All heirs and legatees. They must be given notice.
Who bears the burden of proof in a will contest?
The party contesting the will.
What must will contestants show in order to establish undue influence?
- Influence was exerted on the testator
- The effect of the influence was to overpower the mind and free will of the testator
- The product of the influence was a will that would not have been executed but for the influence
Is circumstantial evidence enough to show undue influence?
No. The challenger needs direct evidence.
When is a presumption of undue influence created?
- A confidential relationship existed between the testator and the beneficiary who was alleged to have exercised undue influence and
- The beneficiary participated in some way in producing or drafting the will or in some other significant activity relating to the execution of the will.
- An unnatural disposition of the will + other suspicious circumstances
Does the presumption of undue influence created by confidential relationships apply to spouses?
No. Spousal relationships do not create this presumption.
A will is void for fraud when:
- The testator has been willfully deceived as to the character or the content of the instrument, as to the extrinsic facts that would induce the will or a particular disposition, or with respect to facts material to a disposition.
- This deception was a but for cause in the testator’s formation of the will.
What happens when fraudsters prevent a person from executing a valid will?
Courts are split. (A) Some courts apply intestate succession out of a belief that they cannot write a will for the descendant. (B) Other courts impose constructive trusts to protect innocent would-be heirs.
Usually, courts grant relief when a mistake _________.
Appears on the face of the will.
What kind of evidence is allowed to show that the testator made a mistake?
Extrinsic evidence can be used to show that the testator was mistaken regarding what they signed, i.e. they thought the will was a power of attorney.
Will relief be granted when extrinsic evidence shows that the testator mistakenly included or omitted a provision in his will?
No. Testator is presumed to have known full well what was included in a duly executed will, as long as extrinsic evidence doesn’t show that he was mistaken about the nature of the document he was singing.
Under common law, what happens if the plain meaning of the will is unambiguous?
The will cannot be contested as mistaken.
Under the UPC, what happens if the will is unambiguous?
The will can still be contested through the doctrine of mistake. The contesting party has to prove by clear and convincing evidence that the testator’s intent and the terms of the will were affected by a mistake of fact or law.
What is a “no contest” clause?
A clause that disinherits anyone challenging the will.
What are the majority and minority views on “no contest” clauses?
Majority: if the challenger had probable cause to contest the will, they still take under the will.
Minority: the clause is given full effect even if the challenger had probable cause to challenge the will.
When does a will “speak”?
At the time of death.
