Will Contests: In General; Procedure; Testamentary Capacity Flashcards
What is a will contest?
What are the grounds (7)?
“will contest” = challenges validity of will admitted to probate
Grounds:
- defective execution
- revocation
- lack of testamentary capacity
- lack of testamentary intent
- undue influence
- fraud
- mistake
When must a will contest be filed?
Will contest must be filed within 120 days after will is admitted to probate
Who has STANDING to contest a will?
What is an “interested party”?
Rule –> only INTERESTED PARTIES have standing to contest a will
“interested party” = someone whose interests would be adversely affected by admission of will
NOT “interested parties” –> creditors, executors, testamentary trustees
Who bears the burden of proof in a will contest?
Will contestant bears burden of proof
Who are “necessary parties” in a will contest?
What are they entitled to?
“necessary parties” include:
- all legatees AND
- all intestate heirs
They are entitled to NOTICE
If a will is contested, what happens if only a portion of the will is found to have been proceeded by undue influence, fraud, duress, or mistake?
Only that part is void.
The remainder is given effect
What is required to have “testamentary capacity”?
- T must be 18+ at time of execution
- T must have requisite MENTAL CAPACITY at time will is executed. Must understand:
(i) nature of his act
(ii) nature and extent of his property
(iii) persons who are natural objects of his bounty
With regard to “testamentary capacity” - what if T is old, ill, forgetful, or addicted to drugs/alcohol?
This, by itself, does not negate testamentary capacity. Will contestant has burden of showing T does not pass test.
May a person adjudicated incompetent still have testamentary capacity?
Yes, as long as he passes test
With regards to “testamentary capacity” what is the effect of proof of ability to conduct ordinary business?
It can serve as important evidence of testamentary capacity
What is “insane delusion”?
When can a disposition be set aside due to insane delusion?
Can insane delusion invalidate the whole will? Can it invalidate a portion?
“insane delusion” = a distinct form of incapacity. It is:
- a belief in facts that don’t exist; AND
- that no rational person would believe exist
Disposition can be set aside for insane delusion ONLY IF the delusion CAUSED the disposition.
It can invalidate the whole will, or a portion
Who has the burden of proving lack of mental capacity or insane delusion?
Person challenging will
