Will Execution Flashcards
1
Q
will contest
EXECUTION
A
= challenges whether the document offered for probate is a valid will
2
Q
7 grounds for contest
WILL CONTESTS
A
- Defective EXECUTION
- The will offered has been validly REVOKED;
- The testator lacked TESTAMENTARY CAPACITY;
- The testator lacked TESTAMENTARY INTENT;
- The will or a gift therein is a product of UNDUE INFLUENCE;
- The will or a gift therein was procured by FRAUD; or
- The document was executed or a gift was made as the result of a MISTAKE
3
Q
most common grounds for contest
WILL CONTESTS
A
- lack of testamentary capacity
2. undue influence
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
5
Q
proper contestants
PROCEDURAL ASPECTS // WILL CONTESTS
A
= only interested parties have standing to contest a will
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
7
Q
2 types of interested parties
PROCEDURAL ASPECTS // WILL CONTESTS
A
- those who would take under the intestate laws if the challenged will is invalidated
- 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
8
Q
examples of interested parties
PROCEDURAL ASPECTS // WILL CONTESTS
A
intestate heirs and legatees under earlier wills
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
10
Q
age
TESTAMENTARY CAPACITY
A
TN = 18 UPC = 18
11
Q
when is age assessed?
TESTAMENTARY CAPACITY
A
a) Date of execution
b) NOT date of death
12
Q
mental capacity requirement
TESTAMENTARY CAPACITY
A
a) UPC = sound mind
b) TN = sound mind
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
14
Q
physical weakness/disease
MENTAL CAPACITY
A
not sufficient to render T incapable by itself
15
Q
old age
MENTAL CAPACITY
A
not sufficient to render T incapable by itself
16
Q
blunt perception
MENTAL CAPACITY
A
not sufficient to render T incapable by itself
17
Q
failing mind/memory
MENTAL CAPACITY
A
not sufficient to render T incapable by itself
18
Q
drug addiction
MENTAL CAPACITY
A
not sufficient to render T incapable by itself
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
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
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
- The nature and extent of his or her property
- The natural objects of his or her bounty
- The disposition that he or she is making of that property AND
- Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his or her property
22
Q
burden of proof
MENTAL CAPACITY
A
- General presumption of competence
- Challenger has BOP for incapacity to shift burden
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
24
Q
special situations
TESTAMENTARY CAPACITY
A
- insane delusion
- lucid interval
- ante-mortem probate
25
ante-mortem probate
| TESTAMENTARY CAPACITY
yah like litrally* wut
1. ?!
2. Pg. 308
= oooook
*extremely chris traeger voice
26
insane delusion
| TESTAMENTARY CAPACITY
= 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
27
rule
| INSANE DELUSION // TESTAMENTARY CAPACITY
a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will
28
effect
| INSANE DELUSION // TESTAMENTARY CAPACITY
may invalidate the entire will or only a particular gift
29
majority test
| INSANE DELUSION // TESTAMENTARY CAPACITY
(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
30
minority test
| INSANE DELUSION // TESTAMENTARY CAPACITY
(possibly minority)
PROBABLY TN
= If there is ANY evidence to support the testator’s delusion, it is not insane
31
proof required
| INSANE DELUSION // TESTAMENTARY CAPACITY
causation requirement = challenger must show T would not have made the disposition in question BUT FOR the insane delusion
32
lucid interval
| TESTAMENTARY CAPACITY
= a person who lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him or her competent
33
rule
| LUCID INTERVAL // TESTAMENTARY CAPACITY
a will made by an insane person may be valid if made during a lucid interval
34
3 types
| IMPROPER PROCUREMENT
1. undue influence
2. fraud
3. duress
35
rule
| IMPROPER PROCUREMENT
a will is void if its execution is procured by undue influence, fraud, or duress
36
effect
| IMPROPER PROCUREMENT
- 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
rule
| UNDUE INFLUENCE
will is invalid if it is obtained through the exercise of undue influence
38
definition
| UNDUE INFLUENCE
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
pleading
| UNDUE INFLUENCE
does NOT constitute undue influence by itself
40
pleading
| UNDUE INFLUENCE
does NOT constitute undue influence by itself
41
pleading
| UNDUE INFLUENCE
does NOT constitute undue influence by itself
42
pleading
| UNDUE INFLUENCE
does NOT constitute undue influence by itself
43
3 elements
| UNDUE INFLUENCE
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
burden of proof
| UNDUE INFLUENCE
on the challenger
45
type of proof
| UNDUE INFLUENCE
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
most "common" suspicious circumstances
| UNDUE INFLUENCE
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
8 other recognized suspicious circumstances
| UNDUE INFLUENCE
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
insufficient circumstantial evidence of suspicious circumstances
UNDUE INFLUENCE
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
2 elements
| PRESUMPTION OF UNDUE INFLUENCE
a presumption of undue influence is triggered by both
1. Confidential relationship AND
2. Procurement of the will
50
burden shifting
| UNDUE INFLUENCE
Once these elements appear, burden shifts to proponent to prove will wasn’t induced by his undue influence
51
confidential relationship
| UNDUE INFLUENCE
= confidential relationship existed between T and B who was alleged to have exercised undue influence
52
4 types of confidential relationships
| UNDUE INFLUENCE
1. Attorney-client
2. Trustee-beneficiary
3. Attorney-in-fact and principal (power of attorney)
4. Health care worker and patient
53
attorney-client confidential relationship
| UNDUE INFLUENCE
- 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
rebutting confidential relationship presumption
| UNDUE INFLUENCE
presumption of undue influence can be overcome only by clear and convincing evidence of the fairness of the transaction
55
confidential relationship presumption between spouses
| UNDUE INFLUENCE
- 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
undue spousal influence
| UNDUE INFLUENCE
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
procurement of will
| UNDUE INFLUENCE
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
determining whether B was active in procuring will
| UNDUE INFLUENCE
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
unnatural disposition
| UNDUE INFLUENCE
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
definition
| NO-CONTEST CLAUSES
AKA an in terrorem clause
= provides that a beneficiary who contests the will forfeits his interest under the will
61
typical clause
| NO-CONTEST CLAUSES
“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
does not apply to
| NO-CONTEST CLAUSES
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
upc/majority rule
| NO-CONTEST CLAUSES
= 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
2 upc/majority principles
| NO-CONTEST CLAUSES
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
minority rule
| NO-CONTEST CLAUSES
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
definition
| FRAUD
1. T is deceived by a misrepresentation and
| 2. does that which she would not have done had the misrepresentation not been made
67
2 types
| FRAUD
1. Fraud in the inducement
| 2. Fraud in the execution
68
requirements
| FRAUD
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
innocent misrepresentation
| FRAUD
= does not constitute fraud
| although relief might possibly be available on the ground of mistake
70
causation
| FRAUD
Fraud invalidates a will ONLY IF T
1. was IN FACT deceived by AND
2. acted in reliance on the misrepresentation
71
fraud in the execution
| FRAUD
AKA fraud in the factum
= a misrepresentation as to the nature of the contents of the instrument
72
fraud in the inducement
| FRAUD
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
burden of proof
| FRAUD
challenger has BOP for fraud
74
definition
| DURESS
= 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
burden of proof
| DURESS
challenger has BOP for duress
76
definition
| FRAUDULENT PREVENTION OF WILL
= fraudulent prevention of the execution of a will by one or more of the persons who would take by intestate succession
77
relief
| FRAUDULENT PREVENTION OF WILL
= split as to whether relief is available
TWO VIEWS
1. Apply intestate succession laws
2. Impose construction trust
78
rationale for applying intestate succession laws
| FRAUDULENT PREVENTION OF WILL
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
rationale for imposing constructive trust
| FRAUDULENT PREVENTION OF WILL
(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
applicable law
| EXAM INSTRUCTIONS
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
