Wills Flashcards
Benefits of Wills
1) Less worry about will suppression
2) Parent’s custody recommendations might help kids
3) Appointing a reliable executor and alternate
4) Pay just debts
5) Change time survivor to 30 days
What is needed for a will?
Intent
Capacity
Subjective intent
Animus testandi
Certain intent at the time of the instrument being executed that includes: (1) the intent to make a gift by THAT instrument + (2) the gift to be effective at death
Fleming v. Morrison
A properly executed will but denied because there was no intent for the document to be executed as a will
If there is no animus testandi
Part/All of the instrument can be denied to probate
Dumeland
1995 ND case that admitted a will to probate even though there was no animus testandi
How do mistakes affect wills?
Perhaps means that there is no animus testandi
Mistake in the execution
(1) document signed and not realizing it is a will
(2) contains provisions not intended by the sender
Effect of mistake in the inducement
(1) document is not admitted to probate
(2) do not admit misunderstood portions to probate
Coercion/Duress
substitutes intent is NOT allowed under probate, typically more of an issue about the gifts later on
Undue Influence
overcomes T’s free will through psychological domination and does not require the wrongdoer to take control of T’s mind, it is enough for the wrongdoer took control of T’s actions in executing the instrument
Undue Influence Effect
May result in denial of part/all of the will
Loss of Free Agency Test
1) Influencer have opportunity?
2) Influencer have motive?
3) Are the results unnatural?
4) Was the decedent suspectible to psychological domination?
Variation of Improper Conduct Approach
Loss of free agnecy (opportunity, motive, unnatural results, and susceptibility)
PLUS unethical conduct
Mueller v. Wells
Listed factors:
Opportunity, causation, result, and vulnerability of T
Other factors involved in testing loss of free agency
If T and the WD had a confidential relationship, If WD took bulk of the estate, if T’s intellect was weak, suspicious circumstances
Burden of proof in loss of agency
To proponent, must show BOTH (1) presumed influencer acted in good faith and (2) decedent acted freely
Punitive Damages against undue influence
Common Law: no
NJ case in 2008: yes, if wanton and willful disregard of harmed people
Tough because it imposes their morality of judge/jury
Devises to lawyers
Common law: not undue influence if the lawyer drafts the will and gives themselves a gift
Modern: Yes - rebutting presumption of C+C evidence that no undue influence occurred or legal advice on the will alone (depends on state)
Fraud in the execution
misrepresentation based on the instrument
Fraud in the inducement
misrepresentation about something OTHER THAN the document
Fraud elements
1) Misrepresentation
2) Made with the intent to deceive and purpose influence
3) Causing or inducing a change in behavior
4) Then executing/revoking instrument or not
Puckett v. Krida
Nurses convinced the decedent that her niece wasted her money, but there was a tough showing of misrepresentation
McDaniel v. McDaniel
Found for fraud after there was a change in the will that the son was out-of-state spending money