will contests

Question 1

will contest

Answer 1

• contestant is challenging probate
• must be made within 2 years of opening probate
• claimant may be an interested party

IP- will stand to benefit financially under the will, would take under intestate succession but not under the will; or a person interested in the welfare of an incapacitated person including a minor

Question 2

forfeiture clause

Answer 2

• designed to deter a beneficiary form challenging the will
• B will lose B’s share if he files a challenge
• if the claim is baseless, then clause is enforceable
• will not be enforced if claimant has just cause and brought claim in GF

Question 3

Testamentary capacity- proof

Answer 3

-person challenging the will bears the burden of proving the T lacked capacity at the time of executing the will

Question 4

T must know at capacity

Answer 4

• nature of the act
• nature and character of her property
• natural objects of his bounty
• plan of the attempted disposition
• doesn’t actually have to know, just must have ability*

Question 5

Challenging capacity

Answer 5

1) general capacity
2) insane delusion
3) undue influence

Question 6

insane delusion

Answer 6

• false belief to which the T adheres in spite of all reason and evidence to the contrary
• objective= measure T’s insane delusion against that of a rational person in T’s position; rational person could not have reached the same conclusion
• must show the insane delusion was a but-for cause of the testamentary dispositon

Question 7

undue influence

Answer 7

• coercive relationship
• contestant alleges a 3P controlled the T’s decision-making process
• contestant must show:
  1) existence and exertion of influence
  2) cause of suspect disposition
  3) influence overpowered the mind and the will of the T

Susceptibility, motive, opportunity, causation

Question 8

confidential realtionshpi

Answer 8

• presumption of undue influence when influencer had a confidential relationship with the T
• usually professional– doctor, therapist, can be familial

Question 9

consequences of undue influence

Answer 9

• B is treated as if he predeceases the T to the extent the gift is in excess of the B’s intestate share
• causation is the key element

Question 10

drafter rule

Answer 10

-any provision making a gift to the drafter of the will or her family is invalid unless the drafter is related to the T

Question 11

Fraud

Answer 11

-contestant bears the burden of showing that the B engaged in an unlawful misrepresentation at the time of the execution

Question 12

Elements of fraud

Answer 12

1) intent to deceive the testator and

2) purpose of influencing the testamentary disposition

Question 13

kinds of fraud

Answer 13

1) inducement- causes T to make a different will than the T would have made otherwise (ex: leave to different person)
2) execution- misrepresentation as to the character or contents of the will (different contents)
remedy= constructive trust