Wills: Capacity and Contests Flashcards

1
Q

Valid Wills

A
  • Who are of sound mind
  • Who understand what they are doing, and
  • Who are expressing their wishes voluntarily
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2
Q

Invalid Will

A
  • A testator lacks mental capacity because of dementia or other mental illness, or
  • The will is the product of undue influence, fraud or duress
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3
Q

Mental Capacity

A
  • 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 (e.g. family members)
    3) the disposition that he or she is making of that property,
  • And must also be capable of
    4) relating these elements to one
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4
Q

Burdens of Proof for Mental Capacity (Minority view, Indiana)

A
  • Initial presumption that the testator possesses mental capacity
  • Contestant may offer evidence to rebut the presumption
  • If presumption is rebutted, proponent of the will must prove mental capacity by a preponderance of the evidence
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5
Q

Burdens of Proof for Mental Capacity (Majority view)

A
  • Proponent of will must introduce prima facie evidence of due execution
  • Burden switches to contestant to prove mental incapacity by a preponderance of the evidence
  • UPC § 3-407
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6
Q

Insane Delusion

A

Testator may have sufficient mental capacity generally, but an insane delusion usually about a family member may affect the disposition of the estate

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7
Q

Proving insane delusion (majority)

A

-Is the Delusion Insane?
A delusion is insane even if there is some factual basis for it if a rational person could not have drawn the same conclusion.
-Did the Delusion Cause Bequest?
Insane delusion materially affected or influenced the will.

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8
Q

Proving insane delusion (minority)

A

-Is the Delusion Insane?
If there is any factual basis for the delusion, it is not insane.
-Did the Delusion Cause Bequest?
Insane delusion might have caused or affected the will (i.e. presume causation if there is an insane delusion + an unnatural disposition)

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9
Q

Test for testamentary capacity

A

Testators must
-Understand the nature of their act;
-know the extent of their property;
-Understand the proposed testamentary disposition; and
-Know the natural objects of their bounty
The will must represent the testator’s wishes
The test is roughly the same from state to state

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10
Q

Undue Influence

A

“A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it[:]

  • Overcame the donor’s free will and
  • Caused the donor to make a donative transfer that the donor would not otherwise have made…
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11
Q

Inference of Undue Influence can be raised when:

A
  • Donor was susceptible to undue influence
  • Alleged wrongdoer and opportunity to exert undue influence
  • Alleged wrongdoer had a disposition to exert undue influence
  • There was a result appearing to be the effect of undue influence
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12
Q

Presumptions and Burden Shifting

A

Confidential Relationship + Suspicious Circumstances = Presumption of Undue Influence (Burden Shifting)

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13
Q

Types of Confidential Relationships

A
  • Fiduciary (attorney, appointed agent)
  • Reliant - Special trust and confidence (financial adviser, physician)
  • Dominant-subservient (feeble adult and caregiver or adult child)
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14
Q

Examples of Suspicious Circumstances

A
  • Secrecy or haste
  • Participation of wrongdoer in drafting of will
  • Reasonable person would regard it as unnatural, unjust or unfair
  • Donor’s attitude toward others changed by reason of his relationship with the alleged wrongdoer
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15
Q

Undue Influence in Indiana

A
  • If a confidential relationship exists (attorney-cleint, principal-agent, husband-wife, parent-child, pastor-parishioner), then contestant shifts burden of proof
  • The presumption of undue influence may be rebutted by establishing through clear and convincing evidence that
  • the influencer acted in good faith,
  • the influencer did not take advantage of the position of trust, and
  • the transaction was fair and equitable
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16
Q

Undue Influence in Indiana (continued)

A
  • If the undue influence arises from the facts of the case rather than a recognized fiduciary relationship, a confidential relationship is established if it is shown that the parties did not deal on terms of equality.
  • the influencer dealt with superior knowledge of the matter derived from a fiduciary relationship,
  • the influencer dealt from a position of overpowering influence, or
  • the testator dealt from a position of weakness, dependence or trust justifiably reposed in the influencer
17
Q

Bequests to Attorneys

A
  • Undue Influence
  • -Many courts hold that a presumption of undue influence arises when an attorney-drafter receives a legacy, except when related to the testator.
  • Unethical Conduct
  • -“A lawyer shall not solicit any substantial gift from a client, …unless the lawyer or other recipient … is related to the client.” Model Rule and Ind. Rule 1.8(c)
  • Fiduciary Appointments
  • -“In obtaining the client’s informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.” Model Rule 1.8(c), comment
18
Q

Fraud

A
  • Testator is deceived by a deliberate misrepresentation and as a result does that which s/he would not have done.
  • The misrepresentation must be made with the intent to deceive the testator and a purpose to influence the disposition
19
Q

Fraud in the Inducement

A

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.

20
Q

Fraud in the Execution

A

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.

21
Q

Remedies for fraud

A
  • Invalidate the fraudulently procured provision
  • Refuse to probate the will
  • Probate the will and impose a constructive trust
22
Q

Duress

A

-When undue influence becomes overtly coercive
-“A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.”