Will Contests (RIPE FOR TESTING) Flashcards
Rule Re: Mistake
Absent suspicious circs, it is CONCLUSIVELY presumed that testator read the will and intended its consequences. The plain meaning of the will won’t be overturned by extrinsic evidence.
Latent Ambiguity
- Def
- extrinsic evidence?
- A latent ambiguity is a misdescription. The error is not evident by looking at the will.
- Extrinsic evidence IS ADMISSIBLE to clarify or find the meaning of testator’s words.
- TYPES OF EXTRINSIC EV ALLOWED = facts & circs evidence, Ts declarations of intent to 3rd parties, and Ts statements to attorney who prepared the will
- If extrinsic evidence does not cure the ambiguity, the gift fails b/c we have no ascertainable beneficiary
Patent Ambiguity
- Def?
- extrinsic evidence?
- A patent ambiguity is obvious error on the face of the will. (ex- I give X twenty-five dollars ($25,000)
- Extrinsic evidence IS ADMISSIBLE
- TYPES ALLOWED- facts and circs & statements to drafting attorney (NO statements of intent to third parties!!)
Conditional Wills
- Def
- how to argue on the bar
- A will that expressly provides that it will be operative ONLY if some condition.
- THIS IS ONE OF THOSE LIMITED INSTANCES WHERE YOU ARGUE BOTH WAYS (unless they tell you what was in T’s head)
- argument 1- conditional will; probate should be denied b/c the condition did not occur
- argument 2- the reference to the condition merely reflects Ts motive or inducement for making the will (ex- dangers he faced on a trip caused him to think of the possibility of death, and thus the need for a will)
Mutual Wills
- def
- NY rule
- separate wills executed by 2+ Ts that contain substantially similar or reciprocal provisions
- NY- the mere execution of mutual wills is not evidence of a CONTRACT to make reciprocal gifts. A K to make a testamentary gift is unenforceable unless it is in writing and signed by the party to be charged therewith.
Def: Joint will
- A will of two people in ONE document.
Issue- whether a joint will was executed pursuant to a K that the survivor would not revoke the joint will after the death of the other spouse
RULE- A K to make a will or to not revoke a will can ONLY be established by AN EXPRESS STATEMENT OF INTENT that the wills provisions are intended to constitute a K btw the two parties. Ct will not find a K of non-revocation was intented merely b/c the joint will uses possessive pronounces (we, us, our)
NOTE: a contractual joint will can ONLY be revoked by agreement btw the parties while both alive.
What happens if a joint will IS a contractual will and the survivor breaches the K by executing a later will with inconsistent provisions?
Step 1- Probate will 2, even though will 1 was written as a K
Step 2- impose a constructive trust in favor of the intended beneficiaries of the contractual will.
Why? we probate will 2 b/c it may contain assets that were not in will 1, and thus THOSE assets go to the beneficiaries listed in will 2. The assets that overlap w/ will 1 go into the constructive trust in order to keep the K.
**TESTAMENTARY CAPACITY:
A testator must have sufficient capacity to . . . (4)
1- understand the nature of the act (aka understand that he was writing a will)
2- know the nature and approximate value of his property
3- know the NATURAL OBJECT OF HIS BOUNTY (aka know who his family/loved ones are)
4- understand the dispositions/gifts he is making
NOTE: CAPACITY TO MAKE A WILL REQUIRES LESS CAPACITY THAN IS REQUIRED FOR MAKING OTHER LEGAL INSTRUMENTS (LIKE K’S), SOMEONE ADJUDICATED INCOMPETENT TO MANAGE HER AFFIRS COULD EXECUTE A WILL DURING A LUCID INTERVAL. JUST NEED 1-4!!
**TESTAMENTARY CAPACITY:
Insane Delusion
T is generally of sound mind, but has a PERSISTENT BELIEF in supposed facts that are AGAINST ALL EVIDENCE/PROBABILITY which CAUSE OR EFFECT the T’s TESTAMENTARY ACT
**TESTAMENTARY CAPACITY:
Undue Influence
WILL CONTESTANT has the burden of proving:
1- EXISTENCE andddd EXERTION of an influence;
AND
2- the EFECT of such influence was to OVERPOWER the mind & will of testator;
AND
3- The product is a will OR a gift in a will which WOULD NOT HAVE HAPPENED BUT FOR that influence.
Note- “Influence is not undue unless the free agency of the testator was destroyed such that the Will produced is essentially a Will, not of the testator, but of the one exerting the influence.”
**TESTAMENTARY CAPACITY:
3 situations insufficient, WITHOUT MORE, to constitute undue influence
1- opportunity to exert influence
2- susceptibility to influence because of age or illness
3- Unequal dispositions
**TESTAMENTARY CAPACITY:
There is a REBUTTABLE PRESUMPTION of undue influence if will contestant can prove:
1- will makes a gift to someone in a confidential relationship w/ testator
AND
2- that person was active in preparing the will
it is incumbent upon the beneficiary to explain the circumstances & to show in the first instance that the gift was freely and willingly made. Generally, the explanation consists of proof that the beneficiary was a relative or close friend
**TESTAMENTARY CAPACITY:
Undue Influence & Bequests to drafting attorney
- Even if no objection is filed, the Surrogate’s Court AUTOMATICALLY INQUIRES into whether a bequest to the drafting attorney was voluntarily made (known as a “Putnam Scrutiny”).
- it is incumbent upon the beneficiary to explain the circumstances & to show in the first instance that the gift was freely and willingly made. Generally, the explanation consists of proof that the beneficiary was a relative or close friend.
Rules Re: Appointing Drafting Attorney as Executor
NY LAW-
1- drafting attorney named as executor must give WRITTEN disclosure to T that anyone can be an executor AND executor receives a statutory commission AND that the attorney will also be entitled to legal fees for repping the estate.
2- T must SIGN the written disclosure in the PRESENCE OF TWO WITNESSES
3- If attorney fails to comply –> receives only 1/2 of the statutory executor commission
