Will Contests

Question 1

Who has standing to contest a will?

Answer 1

Parties who would fain if the will was denied probate.

NOTE: Grandchildren lack standing if their parent is living.

Question 2

What are the five grounds for challenging a will?

Answer 2

(1) No formalities
(2) Lack of capacity
(3) Fraud in the execution
(4) Fraud in the inducement
(5) Undue influence

Question 3

What is required to prove fraud in the execution?

Answer 3

Misrepresentations made to the testator about the nature, content, or character of the physical will document.

Question 4

What is required to prove fraud in the inducement?

Answer 4

(1) Willful deceit or duress on testator

(2) that induced testator to change or make her will

Question 5

What is a claim of undue influence?

Answer 5

A vulnerable testator’s normal decision making is overcome resulting in a devise the testator would not otherwise have made.

Question 6

What four elements establish a presumption of undue influence?

Answer 6

The beneficiary:

(1) received an unusually large devise,
(2) had opportunity to exert undue influence, considering the age, health, and mental vigor of the testator,
(3) actively participated in the preparation of the will provision, and
(4) stood in a relationship of special trust and confidence with the testator.

Question 7

How do Dead Man’s Statutes apply to will contests?

Answer 7

They prohibit an interested party (who stands to gain or lose) from testifying about the decedent’s statements concerning the subject.

Question 8

Are no-contest clauses enforceable?

Answer 8

Yes, no-contest clauses are generally enforceable, unless for forgery, fraud, etc. claimed in good faith and with probable cause.

Question 9

If a will is found to be invalid, what is the effect?

Answer 9

The most previous valid will is revived, and if none, the decedent’s estate passes through intestate succession.