Wills: Capactiy & Contests

Question 1

In order to make a will, you must be:

Answer 1

o (1) Must be of the age of majority (18)

o (2) Must have sound mind (mental capacity)

Question 2

Factors for Mental Capacity:

Answer 2

o The testator must be capable of knowing and understanding in a general way
o Must be present at the time of execution
o Who observes their capacity: witnesses, notary, lawyer

Question 3

What must a testator know and understand?

Answer 3

▪ (1) The nature and extent of his or her property
▪ (2) The natural objects of his or her bounty
▪ (3) The disposition he or she is making of that
▪ (4) Must be capable of relating these elements to elements to one another and forming an orderly desire regarding the disposition of the property

Question 4

If someone observes a testator lacking capacity:

Answer 4

They should be advised not to sign

Question 5

Of Sound Mind Rules:

Answer 5

-only matters for time of execution of the will
o Legal presumption is always in the favor of sanity
▪ Burden is on the will contestant
▪ Being eccentric or odd does not mean the testator lacks capacity
o There is no need to have a minimal level of intelligence, or be “normal”
o Need to determine if he understood what he was doing at the execution
• Physical infirmities do not mean that she is not of sound mind

Question 6

Insane Delusion

Answer 6

o Sound mind but an unreasonable belief about something that causes them to make the disposition

Question 7

For the contestant to prevail against Insane Delusion:

Answer 7

o To prevail contestant must show
▪ (1) that the testator labored under an insane delusion, and
▪ (2) that the will or some part thereof was a product of the insane delusion

Question 8

Insanity Tests:

Answer 8

1) Cunningham Test

2) Insane Delusion Test

Question 9

Cunningham Test

Answer 9

o Mental capacity to make a will requires that:
▪ (1) the testator understands the nature of her act
▪ (2) she knows the extent of her property
▪ (3) she understands the proposed testamentary disposition
▪ (4) she knows the natural objects of her bounty; and
▪ (5) the will represents her wishes

Question 10

Insane Delusion Test

Answer 10

o The insane delusion must materially affect the contested disposition of the will

Question 11

Undue Influence

Answer 11

o Burden of proof is on the contestant
o If there is a confidential relationship  Presumption of Undue Influence
▪ Also focused on: Unusually large bequest to a person with a confidential relationship

Question 12

o Suspicious Circumstances

▪ Factors to be considered in determining if and when a confidential relationship exists

Answer 12

• (1) Whether one person has to be taken care of by others
• (2) Whether one person maintains a close relationship with another
• (3) Whether one person is provided transportation and has their medical care provided for by another
• (4) Whether one person maintains joint accounts with another
• (5) Whether one is physically or mentally weak
• (6) Whether one is of advanced age or poor health, and
• (7) Whether there exists a power of attorney between the one and another - POA is suspicious

Question 13

No-Contest Clauses

Answer 13

These clauses are designed to discourage disgruntled relatives from contesting your will or trust. They work by providing that anyone who does mount a legal challenge—and loses—doesn’t inherit a penny from you.

Question 14

Bequests to Lawyers and Fiduciaries

Answer 14

▪ Many courts find a presumption of undue influence when a lawyer receives a bequest under a will that the lawyer drafted
• Unless the lawyer is closely related to the testator
▪ The presumption can only be rebutted by clear and convincing evidence provided by the lawyer

Question 15

Warning Signs of a Will that may be contested

Answer 15

• Eccentric or older client’s new testamentary scheme makes a significant departure from previous plans
• The testator has multiple or blended families arising from multiple marriages
• Testator make a substantial gift to a caretaker, paramour, or other non-family member who is not liked or trusted by the family
• The testator criticizes a family member in the will or imposes the sort of conditions on a bequest that are likely to cause the beneficiary to bristle
• Unnatural disposition
o Unexpected omission of a close family member, or
o An unexplained distinction among family members of equal relation

Question 16

Strategies to deal with contested wills

Answer 16

• Lawyer should take extra precautions at the will execution
o Choose good witnesses
o Ask the client to tell the witnesses about his dispositive plan and the reasoning behind it
• Immediately after the will is executed, ask the witnesses to sign affidavits relating their impressions
• Have the client send a letter to the lawyer setting forth in detail the disposition the client wishes to make
• Make a video recording of a discussion between the testator and the lawyer
• Hold a family meeting
• Conduct a professional examination of the client’s capacity immediately before executing a will
• Include a no-contest clause
• Create and inter vivos trust
• Give inter vivos gifts

Question 17

Duress

Answer 17

-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
▪ Undue Influence + Coercion

Question 18

Remedy to Duress

Answer 18

• Constructive Trust

o They get it, but they must hold it for the benefit of the others

Question 19

Types of Fraud

Answer 19

▪ (1) Fraud in the Execution

▪ (2) Fraud in the Inducement

Question 20

What are we looking for in Fraud?

Answer 20

o Looking for causation between one of these two concepts and the disposition made in the will
▪ If fraud does not cause the disposition, is it a valid claim?

Question 21

Tortious Interference with an Expectancy

Answer 21

o This is not a will contest – it is a separate tort claim
o Heirs do not have a right to inherit
▪ There is an expectancy, but there is no legal right

Question 22

Elements for Tortious Interference:

Answer 22

▪	Must Allege:
•	(1) The existence of an expectancy
•	(2) Intentional interference with the expectancy through tortious conduct
•	(3) Causation, and
•	(4) Damages
▪	There is no DUTY on anyone

Question 23

Expectancy

Answer 23

if you are the only heir, or if you were the heir in a former will

Question 24

Intentional Interference Rule

Answer 24

o The clock starts ticking when he could have reasonably found out that the decedent is dead
▪ Know or should have known

Question 25

Relief for Intentional Interference

Answer 25

o The rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued
▪ Exception – if the defendant’s fraud is not discovered until after probate, plaintiff is allowed to bring a later action for damages since relief in probate was impossible
o A subsequent action for intentional interference with an expectancy of inheritance may be permitted where the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court