Will Contests / Mistake and Ambiguity

Question 1

What are the grounds for a will to be denied admission to probate?

Answer 1

1) the will was not properly EXECUTED
2) lack of TESTAMENTARY CAPACITY
3) UNDUE INFLUENCE
4) FRAUD; or
5) MISTAKE

Question 2

when does a person have STANDING to contest a will?

Answer 2

a person has standing to contest a will IF they have a PECUNIARY interest that will be impaired by the will’s admission to probate (i.e. they are an interested person/party)

Question 3

2) lack of testamentary capacity

Answer 3

what type of testamentary capacity must a testator have and when??

**person must be 18 years old or older to make a will

A testator need only be mentally competent at the time of executing the will. They must:
*1) Understand the nature of the act;
*2) Know the nature, condition, and extent of their property;
* 3) Know the names of and their relationship to the natural objects of their bounty; and
*4) Understand the scope and meaning of the will provisions. (form cohesive testamentary plan)

Evidence of an adjudication of incapacity and appointment of a conservator is admissible evidence bearing upon testamentary capacity, but it is not prima facie evidence that the testator lacks testamentary capacity.

Question 4

who does the burden of proving testamentary capacity fall on?

Answer 4

The burden of proving capacity is on the will proponent, but proof that the will was validly executed raises a PRESUMPTION OF CAPACITY

Once the presumption exists, the will contestant has the burden of going forward with evidence to overcome it.

Question 5

3) undue influence

Answer 5

A will may be set aside if it is a product of COERCION or DURESS

Question 6

how does one establish undue influence?

Answer 6

to establish undue influence, the contestants must prove:
1) the existence and assertion of INFLUENCE
2) that OVERPOWERED the testator’s mind and free will
3) causation –> that produced a will (or a gift in a will) that would NOT have been made BUT FOR such influence

**free will of testator must be overcome

Question 7

when does a presumption of undue influence arise??

Answer 7

a presumption of undue influence arises if it is proved by CLEAR AND CONVINCING EVIDENCE that the testator:
1) suffered from a WEAKNESS of MIND; (susceptibility)
2) named a beneficiary with whom the testator stood in a RELATIONSHIP OF CONFIDENCE OR DEPENDENCE; and
3) either previously expressed a CONTRARY INTENTION or previously expressed NO INTENTION regarding the disposition of the property

basically prove 1) susceptibility + 2) confidential relationship

*NOT THE SAME AS FRAUD (where you seduce testator to think something is a certain way when in reality it is not)

Question 8

when is there a presumption of FRAUD?

Answer 8

presumption of fraud arises if
(1) the will was DRAFTED by a person in a CONFIDENTIAL relationship with the testator, and
(2) there are SUSPICIOUS CIRCUMSTANCES

Question 9

what happens if you are able to prove undue influence??

Answer 9

**if can prove undue influence → then the part of the will that was affected will be invalidated
As opposed to the whole will being revoked/invalidated with incapacity

if proved that undue influence happened - then the BURDEN SHIFTS to the wrongdoer to establish that undue influence did NOT occur

Question 10

what are the 5 types of confidential relationships??

Answer 10

Presumption of undue influence arises if you have ANY of these 5 confidential relationships
(1) priest-penitent - anyone in a spiritual relationship with the individual
(2) doctor-patient
(3) attorney-client
(4) guardian-ward
(5) relationship of trust (if you can manage their money) (subservient relationship)

Question 11

how to rebut the presumption of undue influence??

Answer 11

3) if presumption of undue influence arises → has to be rebutted by either:

a) IF ONE CONFIDENTIAL RELATIONSHIP → rebut the preponderance of the evidence of the mind of the testator
b) IF MORE THAN ONE CONFIDENTIAL RELATIONSHIP → rebut by clear and convincing evidence

**have to demonstrate that the mind of the testator had ability to resist any undue influence

Question 12

what is fraud??

Answer 12

FRAUD → An intentional misrepresentation of a material fact upon which party relies to his or her detriment

elements:
1) false representation that the speaker knows to be false
2) INTENT TO DECIEVE
3) the other party’s IGNORANCE OF THE FALSITY; and
4) RELIANCE on the false representation that iNDUCED the party to act to their injury

Question 13

what is the effect of fraud??

Answer 13

The testator must be willfully deceived as to the character or content of the instrument, the extrinsic facts that induced the will or devise, or the facts material to a disposition.

If execution of a will is the result of fraud, the will is invalid.

A will may be partially invalid if it is found that the inclusion of a gift in a will is the result of fraud.

Question 14

MISTAKE; ambiguity

Answer 14

A court may reform a will or codicil to conform to the decedent’s intention if it is proved by CLEAR AND CONVINCING EVIDENCE that both (1) the decedent’s intent and (2) the will’s terms were affected by a mistake of fact or law, whether in expression or inducement.

if a mistake shapes a testamentary disposition in a will - it is unlikely that the court will reform the mistake (i.e. if testator had full testamentary intent - and provision of any kind of condition in the will

Question 15

mistake as to NATURE of instrument

Answer 15

extrinsic evidence is admissible to show that the testator was UNAWARE of the nature of the instrument they signed

Question 16

mistake as to INDUCEMENT

Answer 16

VA - will can be REFORMED if it is proven that the will or its terms were induced by mistake

Question 17

mistake as to the CONTENTS of the will

Answer 17

Absent evidence of fraud in the execution, duress, or suspicious circumstances, extrinsic evidence is NOT admissible to show that a provision the testator intended to include was mistakenly omitted from a will, or that a provision contained in the will is not what the testator intended.

If the language of a will is UNAMBIGUOUS, evidence is not admissible to show that the testator made a mistake in describing a beneficiary or the gift property.

However, a court may reform a will where clear and convincing evidence shows that BOTH (1) the testator’s INTENT and (2) the will’s TERMS were affected by a MISTAKE.

Question 18

AMBIGUITY - what is ambiguity and what types of ambiguities are there?

Answer 18

ambiguity – reasonable susceptible to alternate meanings

Plaint meaning law applies - means that once validity of a will is established, extrinsic evidence should not be permitted in to clarify the terms of an unambiguous provision - should rely on the words of the will

BUT extrinsic evidence allowed if ambiguous term

1) latent - language of will is clear on face - but results in a misconstruction when applied

2) patent –> uncertainty appears on the face of the will

Question 19

1) latent ambiguity

Answer 19

A latent ambiguity exists when the language of the will is clear on its face in describing a beneficiary or property, but results in a misconstruction when applied.

For instance, two or more persons or things might fit the description (an equivocation), or no person or thing might fit the description exactly.

Both facts and circumstances evidence (such as, evidence about the testator, his family, his property, the claimants under the will and their relationship to the testator, the testator’s hopes and fears, the testator’s habits, etc.) and the testator’s declarations of intent are ADMISSIBLE to CURE the ambiguity.

If the extrinsic evidence does not resolve the ambiguity, however, the gift fails.

Question 20

2) patent ambiguity

Answer 20

A patent ambiguity exists when the uncertainty appears on the face of the will.

Extrinsic evidence as to surrounding facts and circumstances is admissible, but the testator’s declarations are admissible ONLY if there is an equivocation.

An EQUIVOCATION occurs when words in a will describe two or more persons or things equally well.

**if it is a space or something left out - that is not something that the court can fill in

Question 21

Tortious interference with inheritance rights

Answer 21

a cause of action for tortious interference with inheritance rights is NOT recognized in Virginia

Question 22

No-Contest Clauses // in Terrorem clause

Answer 22

A no-contest clause provides that any person who contests a will forfeits their interests under the will. (scare a beneficiary into not filing contest)

**Virginia enforce the clause even if the contest was filed in good faith

These clauses are probably enforceable even if probable cause exists for challenge.

If the contestant is successful, however, the no-contest clause fails along with
the will.

Note that contests brought by a guardian of a minor beneficiary trigger the forfeiture provision in the same way as a contest by anyone else.

Question 23

what does not constitute a ‘contest’ in regards to the no-contest clause?

Answer 23

an action seeking interpretation of a will’s terms is nOT a “contest” that triggers a no-contest clause

Question 24

what is a will contest??

Answer 24

legal proceeding where interested parties dispute validity of a will

Question 25

burden shifting to wrongdoer in undue influence

Answer 25

if proved that undue influence happened - then the BURDEN SHIFTS to the wrongdoer to establish that undue influence did NOT occur

Question 26

how do you demonstrate susceptibility?

Answer 26

different people have different strengths of minds to resist

prove that the undue influence overpowers the testator’s mind and free will - such that the resistance was futile - and that the will reflects the desires of the wrongdoer and not the testator

what is suspicious:
- haste, secrecy, large departures from previous estate plans, isolation (of victim from other loved ones), lack of independent counsel

Question 27

how else can undue influence be proved??

Answer 27

through duress - type of physical coercion

Question 28

what are the 2 types of frauds?

Answer 28

1) fraud in the execution
2) fraud in the inducement

Question 29

1) fraud in the execution

Answer 29

testator decide as to identity / contents of documents

i.e. document or information that the document contains

Question 30

2) fraud in inducemnt

Answer 30

the testator knows that they are executing a will - but the contents were caused because of a deception with regard to an extrinsic fact

and will was made based on this erroneous fact

Question 31

2) fraud in inducemnt

Answer 31

the testator knows that they are executing a will -