Will Contests

Question 1

What is a will contest?

Answer 1

A challenge to the validity of a document offered for probate

Question 2

What are the grounds for a will challenge?

Answer 2

Defective execution, revocation, lack of testamentary capacity, lack of testamentary intent, undue influence, fraud, or mistake

Question 3

When must a will contest be filed?

Answer 3

In most states, a will contest must be filed within six months after the will is admitted to probate

Question 4

Who may file a will contest?

Answer 4

Only interested parties (creditors, executors, and testamentary trustees not included)

Question 5

Who is a necessary party to a will contest?

Answer 5

All legatees and intestate heirs, who are entitled to notice

Question 6

Who has the burden of proof in a will contest?

Answer 6

The contestant

Question 7

What happens if only a portion of the will is found to have been procured by undue influence, fraud, duress or mistake?

Answer 7

Only that part is void, the remainder is given effect

Question 8

What is the required testamentary capacity?

Answer 8

The testator must be 18 at the date of execution (even if they survive past 18 and never make a new will, that will is invalid)

Question 9

What mental capacity is required for a testator?

Answer 9

Need not have contractual capacity, but must have the capacity to understand the nature of their act, the nature and extent of their capacity, the natural objects of their bounty, and must be able to formulate an orderly scheme of disposition

Question 10

When is testator capacity determined?

Answer 10

At the time of execution

Question 11

What is the effect of an adjudication of insanity or appointment of guardian/conservator?

Answer 11

Evidence of lack of capacity but not conclusive

Question 12

What is the effect of an insane delusion?

Answer 12

An insane delusion (a belief in facts that do not exist and that no rational person would believe existed) may invalidate a will or gift to the extent the disposition was caused by the delusion

Question 13

What is the presumption regarding testator competence?

Answer 13

Testator presumed competent and the burden to prove otherwise is on the contestant

Question 14

What is necessary to establish undue influence?

Answer 14

The contestant must establish (1) that influence was exerted, (2) the effect of the influence was to overpower the mind and see will of the testator, and (3) the resulting testamentary disposition would not have been executed but for the influence.

Question 15

Do pleading, begging, nagging, cajoling, or threatening on their own constitute undue influence?

Answer 15

No

Question 16

Is circumstantial evidence of undue influence (e.g., opportunity to influence, susceptibility to influence, or unnatural disposition) sufficient to establish undue influence?

Answer 16

Not on its own

Question 17

When does a presumption of undue influence arise?

Answer 17

When (1) there was a confidential relationship between the testator and beneficiary, and (2) that beneficiary was active in procuring, drafting, or executing the will, the burden of proof shifts to the will proponent

Some states additionally require that the provisions of the will appear unnatural and in favor of the person alleged to have exercised undue influence.

Question 18

Is there an automatic presumption of undue influence between spouses?

Answer 18

No, even though there is a confidential relationship between spouses. A presumption here will only arise if the spouse exerted influence over the testator in such a manner that it (1) overpowered the free will of the testator and (2) resulted in a disposition of reflecting the desires of the influencing spouse.

Question 19

What is required for a successful contest on grounds of fraud?

Answer 19

Testator must have been willfully deceived as to (1) the character or content of the instrument, (2) extrinsic facts that would induce the will or a particular disposition, or (3) facts material to a disposition.

Question 20

What happens if a testator is fraudulently prevented from making a will?

Answer 20

The court usually impasse a constructive trust against intestate beneficiaries in favor of those who would have taken if the will had been made

Question 21

When is a will challengeable on grounds of mistake?

Answer 21

If the testator is mistaken as to the nature of the instrument or, sometimes, if their mistake in inducement appears on the face of the will

Question 22

What is the effect of a mistake in inducement?

Answer 22

If the testator’s mistake involves the reasons why the testator made his will a particular way but the mistake was not fraudulently induced, the court usually doesn’t grant relief unless the mistaken inducement is evidence on the face of the will.

Question 23

Is extrinsic evidence admissible to show that a testator did not know the instrument they were signing was a will?

Answer 23

Yes (because the existence of testamentary intent is in issue)

Question 24

Is extrinsic evidence admissible to show that a provision was mistakenly omitted or is incorrect?

Answer 24

No

Question 25

What is the plain meaning rule?

Answer 25

Evidence of mistake is not admissible to contradict the plain, unambiguous language of the will

Question 26

What is the difference between patent and latent ambiguity?

Answer 26

Latent: a will’s language is clear on its face but results in a misdescription as applied
Patent: appears on the face of the will

Extrinsic evidence may cure latent ambiguities. Under the old rules, it would not be admissible to cure patent ambiguities but the modern view admits it.

Question 27

What is reformation?

Answer 27

Under the UPC a court may reform a will, even if unambiguous, to conform to testator’s intent if proven by clear and convincing evidence that the testator’s intent and the terms of the will were affected by a mistake of law or fact

Question 28

What are no-contest clauses

Answer 28

Under the UPC and in most states, a clause in a will providing that a beneficiary forfeits her interest in the estate if she contests the will is valid and will be enforced unless the beneficiary had probable cause for bringing the contest. A suit objecting to jurisdiction, appointment of an executor, or asking the court to construe the will are not will contests for the purpose of these clauses. A few states give the clauses effect regardless of whether there was probable cause for challenging the will