Wills Flashcards
What types of wills does TN recognize?
- Formal Wills
- Holographic Wills
- Nuncupative (Oral) Wills
Who has standing to challenge a will?
Those who would take under intestate, or a prior will
What is the proper age to execute a will?
18
Who has the burden of proving incapacity?
The challenger
Test for mental capacity (4 parts)
(1) What property they have;
(2) the natural objects of his or her bounty (aka their descendants);
(3) the disposition 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.
Challenges to a will based on capacity (4)(MCUIFD)
- Testator lacked the necessary mental capacity
- Undue influence,
- Fraud
- Duress
Can lawyers draft wills for incompetent people?
NO
Define lucid interval?
a person who has lacks sufficient mental capacity generally but at the time of execution has a period of clarity thus rendering him or her competent
Can people experiencing lucid intervals execute a will?
Yes
Define insane delusion?
a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all or part of the will
Can someone experiencing an insane delusion execute will?
No, this will can be challenged and may be thrown out
If the insane delusion is supported by any evidence, what happens?
If there is any evidence supporting the delusion, it’s not insane
Will a court invalidate a will because of an insane delusion?
Yes. Unlike mistakes, courts will invalidate parts of a will if an insane delusion is proven
Elements needed to prove an insane delusion?
- The testator labored under the insane delusion and
2. the will or some product thereof was a product of the insane delusion
Can lawyers testify to the mental capacity of their client?
Yes, if it’s at issue in the case
3 things that will make a will void?
- undue influence
- fraud
- duress
Elements of undue influence (3)
- Influence was exerted on the testator
- Effect of the influence was to overpower the mind and free will of the testator, and
- The product of the influence was a will that would not have been executed but for the influence
How can you show undue influence existed?
By proving the existence of suspicious circumstances
Name a few suspicious circumstances
(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
In TN, when is there a presumption of undue influence?
- When a confidential relationship existed AND
2. the beneficiary had a role in procuring the will
3 examples of a confidential relationship?
- Attorney-Client
- Power of Attorney and Principal
- Healthcare worker and patient
Does the burden shift to the beneficiary when there is a confidential relationship and the beneficiary had a role in procuring the will?
Yuh
How can the presumption of undue influence be overcome?
By clear and convincing evidence of the validity of the will
What is a no contest clause?
Clauses that say anyone who unsuccessfully challenges a will forfeits their bequest under the challenged will
Does TN enforce no contest clauses?
Only if the unsuccessful contestant lacked probable cause to bring the challenge
Define duress
When the wrongdoer threatened to perform or did perform a wrongful act that coerced the testator into making a donative transfer that the testator would not have otherwise made
Elements of duress (2)
Wrongdoer performed wrongful act that:
(1) coerced the testator into making a will or bequest that the testator would not otherwise have made or
(2) prevented the testator from making a will or bequest that the testator otherwise would have made.
Definition of fraud
A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer he/she otherwise would not have made
2 types of fraud
- Fraud in the Execution
2. Fraud in the Inducement
What is fraud in the execution?
When a person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent
What is fraud in the inducement?
When a misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor
3 requirements to execute a formal will
- Writing
- Signed by the testator
- Attested by at least 2 witnesses
Evidence of integration?
- Fastening
- Page numbers
- Initials on pages
- Consistency
Can the testator sign by proxy?
Sure. But the testator has to ask them to do it, and it has to be in the testators presence