Will Contests Flashcards
What must be alleged and proved to show that a testator had sufficient mental capacity to make a will?
Does testator have sufficient capacity to:
- Understand nature of act that he is doing (writing a will)?
- Know the nature and approximate value of his property?
- Know the tangible objects of his property?
- Have an orderly disposition regarding his property?
When is testator’s capacity or lack of be at issue?
Issues of whether testator has sufficient capacity relates to when the will was executed, or shortly before or shortly after the will was executed.
Does a testator lack sufficient mental capacity to make a will if a testator has been adjudged incapacitated?
Not necessarily. Being adjudged incapacitated is not the same as the four-point test to determine sufficient capacity and this is up for the jury to decide.
The four-point test for sufficient mental capacity is:
Does testator have sufficient capacity to:
- Understand nature of act that he is doing (writing a will)?
- Know the nature and approximate value of his property?
- Know the tangible objects of his property?
- Have an orderly disposition regarding his property?
What must be alleged and proved to establish undue influence?
To prove undue influence, that the testator was subjected to and controlled by a dominant influence of power, the contestant of the will must prove:
- existence and exertion of influence
- effect was to overpower the mind and will of the testator; and
- product was will or gift in will that would not have been made BUT FOR the influence
What is undue influence?
Testator was subjected to and controlled by a dominant influence of power and meets the three-point test.
The contestant of the will has the burden of proof for undue influence.
If a will is contested at time offered for probate, who has the burden of proof?
If a will is contested at time offered for probate, the will proponent has the burden of proof to show testator had capacity.
After a will is admitted to probate, who has the burden of proof for capacity?
After a will is admitted to probate, the will contestant has the burden of proof on capacity and have 2 years to file a will contest.
Who can bring a will contest?
Only interested parties (economic interest) that would be adversely affected by the will’s probate can contest a will. Concerned citizens cannot contest a will.
What is insufficient evidence for undue influence?
Surmise and conjecture are not sufficient evidence for undue influence. For instance:
- mere opportunity to exert influence (being a person’s whole life) is not evidence that the opportunity was taken advantage of
- mere susceptibility to influence due to age or illness is insufficient evidence
- mere unnatural disposition (some kids inherit less than others) is insufficient evidence
Testator had eccentric behavior in last years of life and there is possible undue influence. How do you answer on the exam?
Remember that undue influence is an issue for the JURY, not you to decide.
Instead, list out the four-point test for testamentary capacity:
- Understand nature of act that he is doing (writing a will)?
- Know the nature and approximate value of his property?
- Know the tangible objects of his property?
- Have an orderly disposition regarding his property?
then the three-point test for undue influence that will contestant must prove:
- existence and exertion of influence
- effect was to overpower the mind and will of the testator; and
- product was will or gift in will that would not have been made BUT FOR the influence
*mere opportunity, susceptibility (old, odd), and unnatural disposition (big gift) are not enough alone
Is there undue influence when a will is procured by one in a confidential relationship who benefits from the will?
When a will has been procured by one in a confidential relationship who benefits, there is an inference of undue influence and this inference is strengthened when there are suspicious circumstances.
Significance: will contestant has burden of proof, but will proponent has burden going forward to show no undue influence. If will proponent does not produce sufficient rebuttal evidence, the inference satisfies the will contestant’s burden of proof.
What is a confidential relationship (that could raise inference of undue influence)?
A confidential relationship is one in which a person advises the testator of her will.
What is the rule regarding lawyers drafting wills and making a gift?
If a lawyer drafts a will that makes a gift to the lawyer or to lawyer’s parent/descendant of a parent/employee/or spouse, the gift is void unless the beneficiary was related to the testator within 3 degrees of consanguinity or marriage.
What happens if someone wants to pull an Anna Nicole Smith?
If a woman appears as the surviving spouse of the now-deceased, an action to annul the marriage on the grounds that deceased lacked capacity to consent to the marriage can be filed if the marriage took place within 3 years of deceased’s death and the action is filed within 1 year after his death.
“Should any beneficiary contest this will, he shall forfeit all gifts thereunder, and shall take no part of my estate”
What is the effect of this no-contest clause when someone contests the will on grounds of incapacity and undue influence, then loses the contest?
The will contestant forfeits the gifts he would have received from the will unless there was just cause for the contest.
