Will Contests Flashcards
What are the grounds for denial of probate of a will?
Who has standing to contest a will?
1) The will not properly executed;
(2) Lack of testamentary capacity;
3) Undue influence, fraud, or mistake;
Only an interested person - one who has a pecuniary interest that will be impaired by the will’s admission to probate.
What are the requirements for testamentary capacity?
18 years or older
Mentally competent at time of executing will
What does it mean to be mentally competent for testamentary capacity purposes?
Who bears the burden of proving capacity?
The testator must:
(1) Understand the nature of the act he is doing;
2) Know the nature, condition, and extent of his property;
3) Know the names of and his relationship to the natural objects of his bounty; AND
4) Understand the scope and meaning of the provisions of his will.
The will proponent, but a presumption of capacity arises upon proof of due execution of the will.
What must be shown to prove undue influence?
Does begging, pleading, or nagging constitute undue influence?
1) The existence and exertion of influence;
2) That the effect was overpowering the testator’s mind and free will;
3) that the product of the influence was a will (or gift in a will) that would not have been made but for such influence.
No.
When does a presumption of undue influence arise?
When there is clear and convincing evidence that the testator:
1) suffers from weakness of mind;
2) has names a beneficiary with whom the testator stood in a relationship of confidence and dependence; AND
3) either previously expressed a contrary intention or had expressed no intention regarding the disposition of his property
When does a presumption of fraud arise?
When the will was drafted by one in confidential relationship with the testator AND there are suspicious circumstances
What are the elements of fraud?
1) False representations that the speaker knows to be false;
2) Intent to deceive
3) Ignorance of the falsity; AND
4) Reliance on the representation that induced the party to act to his injury.
What types of mistake provide grounds for contesting a will?
When is evidence not admissible to show mistake?
1) Mistake as to the nature of the document (testator thought it was something else)
2) Mistaken inducement, IF the testator’s child is involved OR the inducement appears on the face of the will
To show that a provision was mistakenly omitted or that provision in the will is not what the testator intended (absent fraud, duress, etc).
When can extrinsic evidence be used to prove mistake?
When there is an alleged mistake as to the nature of the document
What is the difference between a latent ambiguity and a patent ambiguity? How are they proved?
Latent ambiguity exists when the language of the will, although clear on it face, results in a misdescription in application - i.e. two or more persons or things fit the description (or nothing / no one does). Both fact/circumstance evidence and the testator’s declarations of intent are admissible
Patent ambiguity exists the uncertainty appears on the face of the will. The testator’s declarations of intent are not admissible, but fact/circumstance evidence is.
What is a no-contest clause? Is it enforceable?
Such a clause provides that any person who contests a will forgets his interests under the will.
Probably.
Does an action seeking interpretation of a will’s terms constitute a “contest” to the will?
No.
