Will Contests

Question 1

What does a will contest do?

Answer 1

challenges the validity of a document offered for probate.

Question 2

When must a will contest be filed?

Answer 2

Within six months of the will having been admitted to probate.

Question 3

Who has standing to challenge a will?

Answer 3

Only interested parties; i.e. those whose interests are adversely affected by the admission of the will.

Question 4

Can a creditor contest the admission of a will to probate?

Answer 4

No, because creditors, executors, and testamentary trustees are not interested parties.

Question 5

Who is entitled to notice of a will being contested?

Answer 5

All necessary parties to a will; i.e. all legatees and intestate heirs.

Question 6

What is the effect of finding that a part of a will was acquired by fraud, mistake, duress, etc?

Answer 6

Only that part of the will is void. The rest remains.

Question 7

A testator need not have the level of capacity required for _____________.

Answer 7

contracts.

Question 8

A testator simply must have the capacity to understand . . .

Answer 8

1) the nature of her act; 2) the nature and extent of her property; 3) who are the natural objects of her bounty; and 4) the ability to formulate an orderly scheme of disposition.

Question 9

When is a testator’s mental capacity to create a will determined?

Answer 9

At the time of the will’s execution.

Question 10

Does the fact that the testator is a drug addict and alcoholic affect the mental capacity to execute a will?

Answer 10

Not by itself, though it can be evidence of lack of capacity.

Question 11

What happens when a testator is adjudicated insane?

Answer 11

Insanity is evidence of a lack of capacity, but not in and of itself conclusive.

Question 12

Insane Delusion

Answer 12

a belief in facts that are not true.

Question 13

What is the effect of an insane delusion on a will?

Answer 13

parts of the will that were created in reflection of the insane delusion will be set aside.

Question 14

A testator is presumed ____________.

Answer 14

competent

Question 15

What must a will contestant show to prove undue influence?

Answer 15

to establish undue influence, the challenger must show 1) influence was exerted; 2) the effect of the influence was to overpower the mind and free will of the testator; and 3) the resulting testamentary disposition would not have been executed if not for the undue influence.

Question 16

In order to show undue influence, the free will of the testator must be ____________.

Answer 16

destroyed.

Question 17

Does pleading, nagging, begging, cajoling, or threatening violence constitute undue influence?

Answer 17

No.

Question 18

When will undue influence be presumed?

Answer 18

Undue influence will be presumed when 1) there was a confidential relationship between the testator and the beneficiary; and 2) that beneficiary was active in procuring, drafting, or executing the will.

Question 19

When might undue influence be presumed between a husband and wife?

Answer 19

Spouses are presumed not to unduly influence one another. However, a presumption might arise where the spouse’s influence over the testator 1) overpowered the free will of the testator; and 2) resulted in a disposition reflecting the desires of the spouse exerting the influence.

Question 20

Will a court grant relief for a testator who mistakenly signs the wrong will?

Answer 20

Yes, where the nature of the mistake is obvious.

Question 21

Will a court grant relief to a testator who argues that he made a will in a particular way based on a mistake that was not fraudulently induced?

Answer 21

No

Question 22

A testator makes a mistake in writing his will by putting down the wrong name of the person intended to inherit a piece of property. Will the court grant relief?

Answer 22

No. Under the plain meaning rule, courts will not allow extrinsic evidence to show that a part of a will was omitted or incorrect. Where the terms of the will are clear and unambiguous, they cannot be changed, even if they are not what the testator intended.

Question 23

Latent Ambiguity

Answer 23

where a will’s language is clear on its face but results in a misdescription as applied.

Question 24

Patent Ambiguity

Answer 24

where the uncertainty appears on the face of the will.

Question 25

Courts will allow extrinsic evidence to cure ___________ ambiguities.

Answer 25

latent

Question 26

Under the UPC, when will a court reform a will, even an unambiguous one?

Answer 26

if the testator’s true intent is proven by clear and convincing evidence.

Question 27

Are no-contest clauses valid in a will?

Answer 27

Yes.

Question 28

When might a no-contest clause be invalid?

Answer 28

Where the challenger has probable cause to challenge the will.