Wills-Capacity-DWB

Question 1

Capacity

Answer 1

In order to for the execution or revocation of a will to be valid, the testator must be at least 18 years old and of sound mind.

Question 2

Lucid Interval

Answer 2

Where a testator normally lacks capacity but executes or revokes a will during a lucid interval, the action will be valid.

Question 3

Sound Mind

Answer 3

Testator must have the ability to know the:

• nature and extent of their property,
• natural objects of their bounty,
• nature of the testamentary act to be performed,
• and how these relate to constitute an orderly plan of disposition.

Question 4

Prooving Capacity

Answer 4

• Majority: presumption of capacity arises from prima facie proof of valid execution.
• Minority: proponent bears burden of proving capacity.

Question 5

Capacity:

Standing

Answer 5

Generally, a party has standing to contest the validity of a will, or provision thereof, if the party will financially benefit from a successful challenge.

Question 6

Capacity

Contractual vs. Testamentary

Answer 6

A person lacking contractual capacity does not necessarily lack testamentary capacity.

Question 7

Capacity

Attorney Duty

Answer 7

An attorney has a duty to assess the capacity of an individual before drafting a will for the person. The attorney may use their own judgment, but intentionally contracting with a person lacking capacity is unethical.

Question 8

Effect of Defect of Capacity

Answer 8

Even if a person has general testamentary capacity, a ‘defect’ may invalidate all or part of a will.

Question 9

Capacity Defects

Answer 9

• Insane Delusion
• Undue Influence
• Fraud

Question 10

Insane Delusion

Rule

Answer 10

Insane delusion is a false sense of reality to which a person adheres despite all evidence to the contrary.

• Majority: Rational person.
• Minority: Any factual basis.
• Tips: Traumatic Event; Fact Based-Commonly Reversed; No Religion
• Standard: Soft, Fact-Based Standard, Commonly Overturned on Appeal

Question 11

Insane Delusion Causation

Answer 11

An insane delusion only affects a will if it can be shown that it caused the tesator to dispose of their property differently than they would have.

• Majority: But For test.
• Minority: Might have affected.

Question 12

Undue Influence

Answer 12

Undue influence is “substituted intent” where one influences the testator to the extent that the will epresses the influencer’s intent rather than the testator’s.

Coersion, improper means

Question 13

Undue Influence

Elements

Answer 13

• Suceptibility
• Opportunity
• Motive
• Causation

Question 14

Undue Influence

Traditional Burden Shifting Approach

Answer 14

Under the traditional burden shifting approach, a Presumption of Undue Influence arises where:

• there was a confidential relationship,
• the defendant receives the bulk of the estate,
• and the testator was of weakened intellect.

Question 15

Confidential Relationship

Answer 15

No bright line rule.

• Common Elements: confide, trust, reliance, weakness, dependence
• Examples: intimate extramarital relationship (sexual or not), attorney, religious advisor, care provider.

Question 16

No Contest Clause

Answer 16

A No Contest Clause disenherits beneficiaries who challenge a will.

• Construction: Valid but narrowly construed.
• UPC/Majority: Unenforceable where probable cause for claim.
• Minority: Unenforceable where forgery, revocation, or misconduct by a person active in procuring instrument.

Question 17

Gifts to Attorneys

Answer 17

A gift to an Attorney effected in an instrument drafted by the attorney gives rise to a presumption of undue influence.

• Majority: Heightened burden of proof to rebut presumption (clear and convincing evidence of testator’s intent)
• Minority: Irrebutable presumption except for relative/spouse or instrument reviewed by independent attorney

Question 18

Fraud

Answer 18

Fraud occurs where someone intentionally misrepresents something to the testator, with the intent of influencing the testator’s testamentary scheme and the misrepresentation causes the testator to dispose of their property differently than they otherwise would.

• In inducement: misrepresentation for the purpose of inducing the testator to execute or revoke a will.
• In execution: misrepresentation of the nature of the document, e.g. testator does not know they are signing a will or is misled about some provisions.

Question 19

Fraud Remedies

Answer 19

Fraudulent Provisions: Strike as much of the will as affected by fraud.

Fraudulent Failure to Revoke: Strike what would have been revoked.

Fraudulent Failure to Execute: (Rarely) Constructive trust to affect the intent of the unexecuted will.

Question 20

Tortious Interference with an Expectancy

Answer 20

Where a third party inentionally commits misconduct in the testamentary process, those who would have taken but for the misconduct can sue for tortious interference with expectancy, in addition to the available probate actions.

• Jurisdictional plit: Some probate court, some civil court

Question 21

Tortious Interference with an Expectancy

Elements

Answer 21

• Existence of an expectancy
• Causation by challenged conduct, i.e. “But for” test
• Intentional interference with Expectancy
• Tortious conduct involved with the interference
• Damages

Question 22

Tortious Interference with Expectancy

Advantages

Answer 22

• Not a will contest; does not trigger no contest clause.
• Punitive damages available.
• Longer statute of limitations.

Question 23

Exam Tip

Soft, Fact Based Issues

Answer 23

Capacity issues are typically soft, fact based issues which can go either way, are subject to the prejudices of jury, and are frequently overturned. Argue both sides well, do not focus on the ‘right’ answer.

Question 24

Undue Influence

Basic Four Factor Undue Influence Doctrine

Answer 24

• Susceptibility
• Motive
• Opportunity
• Causation

Question 25

Exam Tip

Tortious Interference with an Expectancy

Answer 25

Always raise Tortious Interference with an Expectancy any alongside Fraud or Undue Influence.

Discuss advantages over will challenges; no contest clause, punitive damages