Wills: Capacity and Undue Influence

Question 1

Three Requirements of a Valid Will?

Answer 1

1. Testamentary Capacity
   a. Legal capacity; and
   b. Mental capacity
2. Testamentary Intent (Present)
   a. Lack of Undue Influence
   b. Lack of Duress
   c. Lack of Fraud
   d. Lack of Mistake
3. Compliance with Formalities of Execution
   a. Valid attested wills
   b. Valid holographic wills

Question 2

How To Attack the Validity of a Will

Answer 2

1. Lack of capacity;
2. Lack of present testamentary intent; or
3. Failure to comply with formalities.

Question 3

When Do You Need to File a Will Contest?

Answer 3

1) Anytime before the hearing on the petition for probate;

2) Within 120 days after will was admitted to
probate (a postprobate/belated will contest is technically a petition to revoke probate).

You cannot file both times, you must pick one

Question 4

Who Has Standing to Contest the Will

Answer 4

Any interested person (A person with a direct interest in the will, who will benefit economically if the will were to be set aside.)

Question 5

Who is an “interested person”?

Answer 5

1) A direct heir at law who is in line to benefit economically (not remote heirs with others before them).

2) A beneficiary under the will (or a previous will) whose share was reduced or taken away by the current will

Question 6

What is Legal Capacity?

Answer 6

An individual 18 or more years of age who is of sound
mind may make a will.

A conservator may also make a will for the conservatee
if the conservator has been so authorized by a court
order, BUT a conservatee who is mentally competent to make a will CAN revoke or amend any will made by the conservator, or making a new and inconsistent will

Question 7

Minimum Capacity Test

Answer 7

Used to determine Mental Capacity (under Testamentary Capacity requirement for valid will):

The individual must have sufficient mental capacity to be able to:
1. Understand the nature of the testamentary act (know they are about to make a will);

2. Understand and recollect the nature and situation of the individual’s property (know generally what property they own & where it is located); and
3. Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will. (“natural objects of your bounty”)

Question 8

What Happens When a Person has Periods of Mental Capacity (“Lucid Intervals”)?

Answer 8

A person who is mentally incapacitated part of the time but who has lucid intervals during which he or she meets the standard for mental capacity can, in the absence of an adjudication or statute that has contrary
effect:

a) Make a valid will or a valid inter vivos donative transfer, PROVIDED such will or transfer is made during a lucid interval.

Question 9

Insane Delusion Test

Answer 9

Used to determine Mental Capacity (under Testamentary Capacity requirement for valid will):

The testator suffers from an insane delusion if:
1) He is operating under a false & unfounded belief;
- NOT just a false belief
- If there is ANY evidence which might have a tendency to create the belief, it is not a delusion.

2. He adheres to the mistaken belief against all evidence, argument, & reason to the contrary, and
3. The insane delusion affects the will.
   - Usually leaves someone out of will because of
   delusion

Question 10

What are the two tests to determine mental capacity?

Answer 10

1) Minimum Capacity Test
2) Insane Delusion Test (used if necessary)

Question 11

Who has the BoP in proving incapacity?

Answer 11

The person attacking the will

Question 12

What happens if T is deemed to have been incapacitated at the time of the will’s execution?

Answer 12

If there is a prior will -> Prior will controls.

If no prior will -> T deemed to have died intestate.

Question 13

What is Testamentary Intent?

Answer 13

The testator must presently intend for the subject document to be his will, and for that will to be effective when he signs it.

Question 14

Undue Influence Definition

Answer 14

A donative transfer is procured by undue influence if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.

Question 15

Undue Influence Elements

Answer 15

1) Abnormal influence exerted over the testator.
* Very fact driven; more than just suggesting, must
cross the line.
* Just being nice to grandma is ok; But telling grandma she must leave you more money or you will hurt her is NOT ok.

2. The influence is so strong that it subverts and overpowers the testator’s mind at the time the testator executes the will, and
3. Influence causes the testator to execute a will that reflects the wishes of the influencer and not that of the testator

Question 16

Main Difficulties in Proving Undue Influence

Answer 16

1. Lack of witnesses (UI usually done in private)
2. The testator is dead
3. Usually no direct evidence of undue influence exists, meaning the opponent to the will must rely on circumstantial evidence.

Question 17

Undue Influence Analysis

Answer 17

1. DISQUALIFIED BENEFICIARY
   * Simple; Involves relationship to decedent/settlor
2. COMMON LAW RULE
   * Burden Shifting
3. STATUTORY RULE
   * Also referred to as prima facie case of Undue
   Influence
   * Designed to supplement the common law rule.

Question 18

Disqualified Beneficiaries Presumption

Answer 18

First Prong of UI Analysis

An instrument making a donative transfer to any of the following persons (or their blood relatives w/in 3 degrees, cohabitant, or employee) is presumed to be the product of fraud or undue influence:

1. The person who drafted the instrument.
2. A person in a fiduciary relationship with the transferor who transcribed the instrument
3. A care custodian of a transferor who is a dependent adult, but ONLY IF the instrument was executed during the period of care or within 90 days before or after that period

Also, a partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

Question 19

What does the Disqualified Beneficiaries Presumption do?

Answer 19

Affects the burden of proof.

The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence

HOWEVER, it is conclusive (cannot be rebutted) when the donative transfer is made:

to the person who drafted the donative instrument, or

to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6)

Question 20

What happens if a beneficiary is unsuccessful in rebutting the Disqualified Beneficiary Presumption

Answer 20

The beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees

Question 21

What happens to the gift/donative transfer if the Disqualified Beneficiary Presumption is not rebutted?

Answer 21

The instrument making the gift shall operate as if the beneficiary had predeceased the transferor without spouse, domestic partner, or issue.

The beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees

Question 22

What is a Certificate of Independent Review?

Answer 22

The Disqualified Beneficiary Presumption does NOT apply if the instrument is reviewed by an independent attorney who counsels the transferor (out of the presence of any heir or proposed beneficiary), about:

1) the nature and consequences of the intended transfer
(effect of the intended transfer on the transferor’s heirs and on any beneficiary of a prior donative instrument)

2) attempts to determine if the intended transfer is the result of fraud or undue influence, and

3) signs and delivers to the transferor an original certificate [form and language of certificate set forth in statute].

Question 23

Role of the Independent Attorney in Independent Review

Answer 23

An attorney solely engaged with the Independent Review requirements shall not be considered to otherwise represent the transferor as a client.

An attorney can ONLY review and certify the same instrument they drafted as to a gift to a care custodian. Otherwise, an attorney who drafts an instrument may not review and certify the same instrument.

If the Certificate of Independent Review is prepared by an attorney other than the attorney who drafted the instrument, a copy of the signed certification shall be provided to the drafting attorney

Question 24

Common Law Undue Influence

Answer 24

Initial burden of proving undue influence is on opponent of the will.

If the opponent proves that there was an:
1) Unnatural distribution;
2) Confidential relationship to the testator; and/or
3) Active participation by the 3rd party
(May use any combination of these factors)

There is a presumption of undue influence.

The burden then shifts to person accused of undue influence to prove the will was not procured by undue influence.

Question 25

Statutory/Prima Facie Undue Influence

Answer 25

1) MOTIVE
o Money, Inheritance, Influencer wasn’t put into the will or got less.

2) UNNATURAL DISTRIBUTION
o What was going on in the T’s life?
o Do the distributions in T’s new will depart drastically from his prior wills?

3) OPPORTUNITY AND ACCESS
o Geographically was the influencer near the testator?
o Was the influencer able to visit the testator? (lived with, visited, etc.)

4) SUSCEPTIBILITY
o Physical: Was the testator dependent on others physically?
o Mentally: How was T’s mental capacity at the time of the alleged undue influence?

5) CONFIDENTIAL RELATIONSHIP TO TESTATOR
o Was this a friend, family member, caretaker, roommate etc.?

6) ACTIVE PARTICIPATION
o i.e., suggest T make will, change the will, offer to type
for them, participate in the planning session, etc.

Question 26

What happens if the will’s opponent (person alleging undue influence) is successful?

Answer 26

If the opponent to the will is successful, T will be deemed to have lacked testamentary intent and the will fails.

> If there is a prior will, the prior will controls

> If there is no prior will:
* Remedy of a constructive trust, or
* Intestacy

Question 27

What is the Constructive Trust Remedy

Answer 27

Result of Proving Undue Influence

If a person can show who the intended beneficiary was, the court can use a constructive trust remedy to save the gift for the intended beneficiary (i.e., act as if the influencer held the property in trust for the intended beneficiary).

• Must be able to prove who T’s intended beneficiary was; and
• The fraud, duress, or undue influence prevented the execution of a will or revocation of a will.

Question 28

Duress Elements

Answer 28

A donative transfer is procured by duress if the wrongdoer:

1) Threatened to perform or
2) Did perform a wrongful act
3) That coerced the donor into making a donative transfer that the donor would not otherwise have made

Question 29

Forms of Fraud

Answer 29

Fraud
- Wrongdoer knowingly or recklessly made a false representation about a material fact to the donor that was intended to and did lead the donor to make a donative transfer that they otherwise would not have made.

Fraud in the Execution
- 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.

Fraud in the Inducement
1. A third party knowingly makes a false statement to the testator with intent to deceive them, and the Testator changes his will based on the intentional misrepresentation

Question 30

HYPO: Mother wants to modify her will to make her brother the executor and asks her son to draft the codicil. Instead, son drafts an entirely new will (giving son the entire estate) but tells Mother it is the codicil she requested. Mother signs it thinking it’s codicil she requested.

Answer 30

Fraud in the Execution

Result- No testamentary intent

If Prior will > prior will controls
If No prior will > die intestate

Question 31

HYPO: Testator asks son to draft a will leaving even amounts to son and daughter. Testator doesn’t see well, and son gives more to himself than grandpa.

Answer 31

Fraud in the Execution

No testamentary intent for those terms
- Fraudulent terms are invalidated.
- Remainder of will is still in effect.

Question 32

Three Types of Fraud in the Inducement

Answer 32

1) Fraud in the inducement to cause the changing of the terms of a will

2) Fraud in the inducement to prevent changing of the terms of a will or creation of a will. (CT Remedy)

3) Fraud in the inducement to prevent someone from revoking a will. (CT Remedy)