Wills: Capacity and Contests

Question 1

Mental Capacity Requirements

Answer 1

○ Testator must have sufficient capacity to be able to understand:
- The nature of her act - i.e., she must actually know that she is
executing a will;
- The nature and extent of her property;
- The persons who are the natural objects of her bounty; and
- The nature of the disposition she is making, i.e., to be able to
relate the above factors and formulate an orderly scheme of
disposition.
○ Capacity determined at time of will’s execution (capacity can
come and go)
○ Physical ailments/drug addiction/adjudicated insanity do not
automatically equate to lack of mental capacity
○ Burden of proof to lack of capacity is on contestant
○ You should not draft a will for someone you believe to be
incompetent

Question 2

Insane Delusion

Answer 2

○ Distinct form of incapacity
○ An insane delusion may invalidate the entire will or only a particular gift
○ Causation Requirement - A will can be set aside on the ground
of insane delusion only if, and to the extent it can be shown that,
the delusion caused the testamentary disposition.
- The contestant must show that the testator would not have
made the disposition in question but for the insane delusion

Question 3

Undue Influence: Establishing

Answer 3

○ Must Establish (BOP on
Contestant)
- Influence was exerted on
the testator;
- The 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

Question 4

Undue Influence: Presumption of

Answer 4

○ Must Establish (BOP on
Contestant)
- Influence was exerted on
the testator;
- The 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
○ Presumption of Undue
Influence
- Created by the following
acts
□ A confidential
relationship existed
between the testator
and the beneficiary who
was alleged to have
exercised undue
influence; and
□ The beneficiary
participated in some
way in procuring or
drafting the will or in
some other significant
activity relating to the
execution of the will
- Once these elements
appear, burden shifts to
proponent of will to prove
that it was not induced by
his undue influence
- Note:
□ No automation
presumption between
spouses
□ A will preferring a
stranger over blood
kindred is not sufficient
to give rise to a
presumption of undue
influence unless there
are other suspicious
circumstances

Question 5

Planning for and Avoiding a Will Contest: Warning Signs

Answer 5

○ New will significantly different
than old will
○ Multiple marriages
○ Gifts to romantic partners,
caretakers, and other non-
family members
○ Disinheriting one or more of
testators descendants.

Question 6

Planning for and Avoiding a Will Contest: Avoiding Will Contests

Answer 6

○ Take good notes
○ Formally executed will
○ Discuss will and reasons in
front of witnesses
○ Include affidavit
○ Leave something to someone
you’re leaving less
than/nothing to. If someone
loses a will contest, they can
lose the little bit that was left
to them. Therefore, if they are
completely disinherited, they
stand to lose nothing in
contesting the will

Question 7

Fraud

Answer 7

○ Willful deceit as to character
or content of will or as to a
material fact
○ Fraud in execution - contents
of instrument misrepresented
○ Fraud in the inducement
○ Fraudulent prevention of
execution - possible
constructive trust remedy
○ Will or gift as result of fraud is
invalid
○ Need to prove
- Intent
- Influence
- Causation

Question 8

Tortious Interference with an Expectancy

Answer 8

○ Must Show
- Existence of an
expectancy
- Intentional interference
with the expectancy
through tortious conduct
- Causation
- Damages