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Wills & Thrills > Will Execution > Flashcards

Will Execution Flashcards

1
Q

will contest

EXECUTION

A

= challenges whether the document offered for probate is a valid will

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2
Q

7 grounds for contest

WILL CONTESTS

A
  1. Defective EXECUTION
  2. The will offered has been validly REVOKED;
  3. The testator lacked TESTAMENTARY CAPACITY;
  4. The testator lacked TESTAMENTARY INTENT;
  5. The will or a gift therein is a product of UNDUE INFLUENCE;
  6. The will or a gift therein was procured by FRAUD; or
  7. The document was executed or a gift was made as the result of a MISTAKE
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3
Q

most common grounds for contest

WILL CONTESTS

A
  1. lack of testamentary capacity

2. undue influence

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4
Q

time for contest

PROCEDURAL ASPECTS // WILL CONTESTS

A
  • statutory period varies from state to state

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

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5
Q

proper contestants

PROCEDURAL ASPECTS // WILL CONTESTS

A

= only interested parties have standing to contest a will

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6
Q

interested parties

PROCEDURAL ASPECTS // WILL CONTESTS

A

= person has a direct interest in the estate that would be adversely affected by the admission of the will to probate

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7
Q

2 types of interested parties

PROCEDURAL ASPECTS // WILL CONTESTS

A
  1. those who would take under the intestate laws if the challenged will is invalidated
  2. those would take under a prior will if the challenged will is invalidated

EXCEPTION
= T disinherited contestants in two most recent wills and bequests were de minimis = INSUFFICIENT to confer standing

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8
Q

examples of interested parties

PROCEDURAL ASPECTS // WILL CONTESTS

A

intestate heirs and legatees under earlier wills

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9
Q

creditors

PROCEDURAL ASPECTS // WILL CONTESTS

A

DO NOT have standing to contest a will

b/c their claims can be asserted whether the decedent left a will or died intestate

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10
Q

age

TESTAMENTARY CAPACITY

A 
TN = 18
UPC = 18
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11
Q

when is age assessed?

TESTAMENTARY CAPACITY

A

a) Date of execution

b) NOT date of death

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12
Q

mental capacity requirement

TESTAMENTARY CAPACITY

A

a) UPC = sound mind

b) TN = sound mind

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13
Q

sound mind definition

MENTAL CAPACITY

A

(1) @ time will is executed
(2) testator’s mind must be sufficiently sound
(3) to enable him to know and understand
(4) the consequence of his act

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14
Q

physical weakness/disease

MENTAL CAPACITY

A

not sufficient to render T incapable by itself

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15
Q

old age

MENTAL CAPACITY

A

not sufficient to render T incapable by itself

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16
Q

blunt perception

MENTAL CAPACITY

A

not sufficient to render T incapable by itself

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17
Q

failing mind/memory

MENTAL CAPACITY

A

not sufficient to render T incapable by itself

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18
Q

drug addiction

MENTAL CAPACITY

A

not sufficient to render T incapable by itself

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19
Q

adjudication of insanity

MENTAL CAPACITY

A

= person adjudicated insane OR for whom guardian/conservator has been appointed = does not necessarily lack testamentary capacity

  • such an adjudication can be EVIDENCE of lack of required mental capacity
  • BUT NOT CONCLUSIVE and can be overcome with proof satisfying 4-part test
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20
Q

comparative capacity for business/contracts/deed

MENTAL CAPACITY

A

LESS mental capacity is required to make a will

= person who is competent to transact ordinary business = generally regarded as competent to make a will

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21
Q

4-part test

MENTAL CAPACITY

A

to be competent to make a will, the testator must be capable of knowing and understanding in a general way

  1. The nature and extent of his or her property
  2. The natural objects of his or her bounty
  3. The disposition that he or she is making of that property AND
  4. Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his or her property
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22
Q

burden of proof

MENTAL CAPACITY

A
  • General presumption of competence

- Challenger has BOP for incapacity to shift burden

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23
Q

relevance of timing

MENTAL CAPACITY

A

Evidence of incapacity within a reasonable time before and after execution = relevant and admissible INSOFAR as it tends to show mental condition at time of execution of will

NOTE = generally, more distance in time from execution = less significance attached to that fact in determining capacity

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24
Q

special situations

TESTAMENTARY CAPACITY

A
  1. insane delusion
  2. lucid interval
  3. ante-mortem probate
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25
Q

ante-mortem probate

TESTAMENTARY CAPACITY

A

yah like litrally* wut

  1. ?!
  2. Pg. 308
    = oooook

*extremely chris traeger voice

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26
Q

insane delusion

TESTAMENTARY CAPACITY

A

= a false conception of reality, belief in facts that do not exist and that no rational person would believe existed

  • legal, not psychiatric concept
  • T is generally sane
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27
Q

rule

INSANE DELUSION // TESTAMENTARY CAPACITY

A

a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will

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28
Q

effect

INSANE DELUSION // TESTAMENTARY CAPACITY

A

may invalidate the entire will or only a particular gift

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29
Q

majority test

INSANE DELUSION // TESTAMENTARY CAPACITY

A

(probably majority)
PROBABLY NOT TN

= Even if there is some factual basis for it, a delusion is insane if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator

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30
Q

minority test

INSANE DELUSION // TESTAMENTARY CAPACITY

A

(possibly minority)
PROBABLY TN

= If there is ANY evidence to support the testator’s delusion, it is not insane

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31
Q

proof required

INSANE DELUSION // TESTAMENTARY CAPACITY

A

causation requirement = challenger must show T would not have made the disposition in question BUT FOR the insane delusion

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32
Q

lucid interval

TESTAMENTARY CAPACITY

A

= a person who lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him or her competent

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33
Q

rule

LUCID INTERVAL // TESTAMENTARY CAPACITY

A

a will made by an insane person may be valid if made during a lucid interval

34
Q

3 types

IMPROPER PROCUREMENT

A
  1. undue influence
  2. fraud
  3. duress
35
Q

rule

IMPROPER PROCUREMENT

A

a will is void if its execution is procured by undue influence, fraud, or duress

36
Q

effect

IMPROPER PROCUREMENT

A
  • If only part of a will was so procured and it can be separated from the rest of the will, only that part is void
  • Remainder of the will is valid
37
Q

rule

UNDUE INFLUENCE

A

will is invalid if it is obtained through the exercise of undue influence

38
Q

definition

UNDUE INFLUENCE

A

Influence is not undue UNLESS

  1. T’s free will is destroyed AND
  2. the resulting testamentary disposition reflects the desires of the party exerting undue influence instead of T’s
39
Q

pleading

UNDUE INFLUENCE

A

does NOT constitute undue influence by itself

40
Q

pleading

UNDUE INFLUENCE

A

does NOT constitute undue influence by itself

41
Q

pleading

UNDUE INFLUENCE

A

does NOT constitute undue influence by itself

42
Q

pleading

UNDUE INFLUENCE

A

does NOT constitute undue influence by itself

43
Q

3 elements

UNDUE INFLUENCE

A
  1. Influence was exerted on the testator
  2. The effect of the influence was to overpower the mind and free will of the testator AND
  3. The product of the influence was a will that would not have been executed but for the influence
44
Q

burden of proof

UNDUE INFLUENCE

A

on the challenger

45
Q

type of proof

UNDUE INFLUENCE

A
  1. Undue influence can be proved by direct or by circumstantial evidence
  2. Direct evidence is rarely available
  3. In most cases, contestants establish undue influence by proving the existence of suspicious circumstances warranting the conclusion that the will was not the testator’s free and independent act
46
Q

most “common” suspicious circumstances

UNDUE INFLUENCE

A

yeah weird use of quotation marks there huh

but listen ,,,,

Most frequently relied upon suspicious circumstances =

  1. The existence of a confidential relationship between the testator and the beneficiary
  2. The testator’s physical or mental deterioration
  3. The beneficiary’s active involvement in procuring the will
47
Q

8 other recognized suspicious circumstances

UNDUE INFLUENCE

A
  1. Secrecy concerning the will’s existence
  2. The testator’s advanced age
  3. The lack of independent advice in preparing the will
  4. The testator’s illiteracy or blindness
  5. The unjust or unnatural nature of the will’s terms
  6. The testator being in an emotionally distraught state
  7. Discrepancies between the will and the testator’s expressed intentions AND
  8. Fraud or duress directed toward the testator
48
Q

insufficient circumstantial evidence of suspicious circumstances
UNDUE INFLUENCE

A
  1. Mere opportunity to exert influence
  2. Mere susceptibility to influence due to age or physical condition
  3. Unnatural disposition that favors some relatives over others
49
Q

2 elements

PRESUMPTION OF UNDUE INFLUENCE

A

a presumption of undue influence is triggered by both

  1. Confidential relationship AND
  2. Procurement of the will
50
Q

burden shifting

UNDUE INFLUENCE

A

Once these elements appear, burden shifts to proponent to prove will wasn’t induced by his undue influence

51
Q

confidential relationship

UNDUE INFLUENCE

A

= confidential relationship existed between T and B who was alleged to have exercised undue influence

52
Q

4 types of confidential relationships

UNDUE INFLUENCE

A
  1. Attorney-client
  2. Trustee-beneficiary
  3. Attorney-in-fact and principal (power of attorney)
  4. Health care worker and patient
53
Q

attorney-client confidential relationship

UNDUE INFLUENCE

A
  • A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift UNLESS the lawyer or other recipient of the gift is related to the client.
  • Related persons include
    1. Spouse
    2. Child
    3. Grandchild
    4. Parent
    5. grandparent
    6. other relative or individual with whom the lawyer or the client maintains a close, familial relationship
54
Q

rebutting confidential relationship presumption

UNDUE INFLUENCE

A

presumption of undue influence can be overcome only by clear and convincing evidence of the fairness of the transaction

55
Q

confidential relationship presumption between spouses

UNDUE INFLUENCE

A
  • Although a husband and wife share a confidential relationship, a presumption of undue influence does not automatically arise between spouses
  • Reasoning = partially driven by policy of preserving marriages, which an automatic presumption would thwart
56
Q

undue spousal influence

UNDUE INFLUENCE

A

spouse must have exerted influence over T in such a manner that it

  1. overpowered the free will of T AND
  2. resulted in a disposition reflecting the desires of the spouse exerting the influence
57
Q

procurement of will

UNDUE INFLUENCE

A

B participated in some way in procuring or drafting the will or in some other significant activity relating to the execution of the will

58
Q

determining whether B was active in procuring will

UNDUE INFLUENCE

A

can include one or more of the following:

  1. B’s presence when T expressed the desire to make a will
  2. B’s recommending an attorney to prepare will
  3. B’s giving attorney instructions as to what will should contain
  4. B’s knowledge of will’s contents prior to execution
  5. B’s securing witnesses for will
  6. B’s being present when will is executed
  7. B’s safeguarding will after execution
59
Q

unnatural disposition

UNDUE INFLUENCE

A

a presumption of undue influence may arise, despite the absence of a confidential relationship between the testator and beneficiary, when the execution of a will is surrounded by suspicious circumstances

EXAMPLE = T disinherits her children in favor of a stranger
(BUT mere fact that will is unnatural in preferring a stranger over blood kindred is INSUFFICIENT to give rise to presumption without more)

60
Q

definition

NO-CONTEST CLAUSES

A

AKA an in terrorem clause

= provides that a beneficiary who contests the will forfeits his interest under the will

61
Q

typical clause

NO-CONTEST CLAUSES

A

“If any beneficiary contests this will or any of its provisions, he shall forfeit all gifts hereunder and shall take no part of my estate.”

why would i need to know this plz murder me ded i will die intestate i have no will to live

62
Q

does not apply to

NO-CONTEST CLAUSES

A
  1. suits objecting to the court’s jurisdiction
  2. suits challenging the appointment of an executor
  3. suits asking the court to construe the will
    = not will contests within the meaning of most no-contest clauses
63
Q

upc/majority rule

NO-CONTEST CLAUSES

A

= beneficiary who unsuccessfully contests a will with a no-contest clause does not forfeit the legacy if the court finds that the beneficiary challenged the will

  1. in good faith AND
  2. on the basis of probable cause

USED BY TN

64
Q

2 upc/majority principles

NO-CONTEST CLAUSES

A
  1. whether the beneficiary had probable cause = a question of fact
  2. if the contest is successful and the will is denied probate, there is never a forfeiture
    (b/c the no-contest clause is tossed out along with the will)

NOT USED BY TN

65
Q

minority rule

NO-CONTEST CLAUSES

A

have not adopted the “probable cause” defense to enforcement of no-contest clauses
= triggers forfeiture if a beneficiary contests the will is given full effect,
regardless of whether there was probable cause for challenging the will

66
Q

definition

FRAUD

A
  1. T is deceived by a misrepresentation and

2. does that which she would not have done had the misrepresentation not been made

67
Q

2 types

FRAUD

A
  1. Fraud in the inducement

2. Fraud in the execution

68
Q

requirements

FRAUD

A

Proof that T has been willfully deceived

a. as to the character or the content of an instrument OR
b. as to the extrinsic facts that would induce the will or a particular disposition OR
c. with respect to facts material to a disposition

69
Q

innocent misrepresentation

FRAUD

A

= does not constitute fraud

although relief might possibly be available on the ground of mistake

70
Q

causation

FRAUD

A

Fraud invalidates a will ONLY IF T

  1. was IN FACT deceived by AND
  2. acted in reliance on the misrepresentation
71
Q

fraud in the execution

FRAUD

A

AKA fraud in the factum

= a misrepresentation as to the nature of the contents of the instrument

72
Q

fraud in the inducement

FRAUD

A

AKA fraud in treaty

= T intends to execute the instrument as her will and to include the particular contents of that instrument, but she is fraudulently induced into making this will, or some particular gift therein, by misrepresentations as to facts which influence her motivation

73
Q

burden of proof

FRAUD

A

challenger has BOP for fraud

74
Q

definition

DURESS

A

= wrongdoer threatened to perform or did perform a wrongful act that coerced the testator into making a bequest that the testator would not otherwise have made

75
Q

burden of proof

DURESS

A

challenger has BOP for duress

76
Q

definition

FRAUDULENT PREVENTION OF WILL

A

= fraudulent prevention of the execution of a will by one or more of the persons who would take by intestate succession

77
Q

relief

FRAUDULENT PREVENTION OF WILL

A

= split as to whether relief is available

TWO VIEWS

  1. Apply intestate succession laws
  2. Impose construction trust
78
Q

rationale for applying intestate succession laws

FRAUDULENT PREVENTION OF WILL

A

no way of granting relief b/c court cannot write a will on behalf of a decedent = will is invalid and goes to intestacy

79
Q

rationale for imposing constructive trust

FRAUDULENT PREVENTION OF WILL

A

(probably the better view)

= impose a constructive trust against the intestate successors for the benefit of those who would have been beneficiaries of the will that the decedent was fraudulently prevented from executing

80
Q

applicable law

EXAM INSTRUCTIONS

A
  1. wills = tn (compare to UTC)
    intestacy = tn (compare to UTC)
  2. trusts = UTC (or majority if UTC silent)
  3. non-probate transfers = majority
  4. powers of appointment = majority
  5. uniform prudent investment act = adopted by tn
  6. uniform principle and income act = adopted by tn

Wills & Thrills (12 decks)

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