wills contests ** Flashcards
mistake
Absent suspicious circumstances, conclusively presumed that T read Will and intended consequences, even though he did not notice the mistake → the plain meaning (prevails); no extrinsic evidence.
ambiguity
if there is some ambiguity, extrinsic evidence may be allowed to clarify the Plain Meaning
a) Latent Ambiguity: for a mis-description in Will, error not evident by looking at will, which even careful proof reading by 3rd-party would not catch the mistake → extrinsic evidence IS admissible to clarify/determine meaning of testator’s words.
1) Failure: If extrinsic evidence does not cure ambiguity → gift fails (no ascertainable beneficiary).
2) Extrinsic Evidence:
(a) Facts and Circumstances Evidence Admitted: Evidence about T, T’s family, claimants under Will and their relationship to T, T’s habits and thoughts, etc.
(b) T’s Statements to Preparing Attorney Admitted:
(c) Evidence of T’s Declaration of Intent to 3rd Parties Admitted:
(i) Example: T told friend he had bequeathed $10k to nephew James Peter Jones.
3) Example. I give $10k to nephew, John Paul Jones. T has nephew James Peter Jones and nephew named Harold Paul Jones, but no John Paul Jones. Who takes the $10,000?
b) Patent Ambiguity: for an obvious error/mistake on face of Will, where a careful proof reading would catch the mistake → extrinsic evidence IS admissible to cure
1) Extrinsic Evidence:
(a) Facts and Circumstances Evidence Admitted.
(b) T’s Statements to Preparing Attorney Admitted.
(c) BUT, Evidence of T’s Declarations of Intent to 3rd Parties INADMISSIBLE: no third-party evidence that contradicts Will language.
c) Precatory Language: “Wishes” or “desires” in Will result in litigation and DO NOT WORK.
conditional wills
a will that expressly provides that it will be operative only if some condition met. Question is whether (1) probate would be denied if condition does not occur or (2) does reference to condition merely reflect motive for making a will.
a) TIP: NY Courts are split on the effect of conditions, so ARGUE BOTH WAYS:
1) Argument #1: Will is conditional Will; deny probate since condition did not occur (T survived).
2) Argument #2: Will is not conditional Will; admit to probate because reference merely reflects T’s motive or inducement for making Will (dangers he faced made him think about death and need for will).
K to make a will
a) General Rule: EPTL provides a contract to make or not revoke Will can only established by express statement of intent in Will that Will’s provisions intended to constitute contract (need consideration) between parties.
1) Mere use of plural possessive nous (we, us, our) is insufficient.
b) Breach/Remedy: If a Joint Will is a contractual Will (express statement) and the survivor breaches the contract by executing a new, later Will with inconsistent provisions—
1) Step 1: Probate the New, Later Will (Wills’ Law Controls)
(a) We probate Will 2 because there may be other assets in Will 2 which are not in Will 1 which go to the other beneficiaries.
2) Step 2: Impose Constructive Trust In Favor of Original Intended Beneficiaries as Remedy for Breach (beneficiary can sue to enforce the contract).
c) Rescission: contractual Joint Will can be revoked by agreement of parties only while they are both alive. But, deceased spouse’s estate cannot revoke a contractual Will on behalf of the deceased spouse.
testamentary capacity
a) Testator Must have Sufficient Capacity To:
1) Understand nature of act (he was writing a Will, not some other doc); AND
2) Know the nature and approximate value of his property; AND
3) Know the “natural objects of his bounty” (i.e., know his family members and loved ones); AND
4) Understand the disposition (gifts) he was making.
b) Capacity Threshold: Legal capacity for making a Will is a lower threshold than other legal standards for capacity (lower than contract; higher than marriage)
1) Even if person adjudicated incompetent and guardian appointed, may still make will.
2) Jury could find testator executed Will during lucid interval. Person a little nuts, but lucid when executed.
specific capacity issues
1) Insane Delusion: Testator is of generally sound mind on other subjects, but has a persistent belief in supposed facts which have no real existence except in T’s perverted imagination, and are against all evidence and probability, and which control and produce the exercise of the testamentary act. (e.g., “paranoia”).
2) Undue Influence: Testator has testamentary capacity but is subjected to, and controlled by, a dominant influence of power.
(a) Will Contestant Must Prove (burden) ALL THREE:
(i) Existence and exertion of an influence; AND
(ii) Effect of such influence was to overpower the mind and will of the testator; AND
(iii) Product is Will or gift in a Will that would not have been executed but for the influence.
(iv) Note: “Influence is not undue unless the free agency of the T was destroyed and a Will is produced that expresses the will, not of the T, but of the one exerting the influence” (i.e., mental duress).
(b) Inference of Undue Influence: contestant can satisfy burden by inference of undue influence if—
(i) Will makes gift to one in confidential relationship; AND
(ii) recipient was active in preparing the Will, UNLESS inference is rebutted.
(c) NO Inference of Undue Influence: the following situations alone are insufficient:
(i) Mere Opportunity to Exert Influence Insufficient
(1) Example: that one child (who received major share of estate) lived with mother, wrote checks for her, helped on income tax, held power of attorney not evidence that she took advantage.
(ii) Susceptibility to Influence due to Age or Illness Insufficient
(1) Example: That Mother very old, broken hip, memory lapses, took Valium not evidence.
(iii) Unequal Dispositions Insufficient
(1) Example: That some children get less or excluded not evidence of undue influence.
3) Bequests to Drafting Attorney: Even if no objection is filed, Surrogate’s Court makes automatic inquiry into whether gift was voluntarily made (“Putnam Scrutiny”).
4) Appointments of Drafting Attorney: Under SCPA, if Will names the drafting attorney as executor:
(a) the drafting attorney must give written disclosure to testator that—
(i) any person, not just attorney, can be named executor; and
(ii) the executor receives statutory commission; and
(iii) the attorney will also be entitled to legal fees for representing the estate;
(b) testator/client must sign the written disclosure in the presence of at least two witnesses (other than the attorney/executor);
(c) Failure to Comply with Statute: drafting lawyer’s executor commissions reduced by 50%, but Will still be admitted to probate.
(d) Note: Attorney can act as both attorney and witness (and… witnesses can also be the executor).
no-contest (in terrorem) clauses
clause in Will stating that if anyone objects to Will, they forfeit their gift under the will. In NY, given full effect and strictly enforced, even if there is probable cause to challenge Will (i.e. good faith contestant forfeits his legacy; person can’t defend themselves against attacks of insanity).
1) EXCEPT: will not be enforced if Will contest is:
(a) Claiming forgery or revocation by subsequent Will if Surrogate Court finds probable cause
(i) But, no exception if you’re alleging will revoked by physical act.
(b) Filed on behalf of a minor or incapacitated beneficiary (action by guardian or 3rd-party).
(c) Construction Proceeding to Construe Wills Terms; (interpretation, not about admissibility) (contestant is not “challenging the Will”; just want to know the interests created by it).
(d) Objection to Jurisdiction of Court (not challenging Will, just to probate elsewhere).
(e) Safe Harbor Provision for a person who is considering contesting a will; may examine in discovery: examining the circumstances of the will (the preparer, witnesses, will proponents and executors), it’s okay; but you cannot examine the testator.
NY recent ct. app. and legislative action: “in special circumstances,” the court has discretion to allow the deposition of a person with information of potential value or relevance.
TIP: if yo usee someone outside safe harbor provisions, use these words BUT no contest clause can be drafted so narrowly as to preclude these types of inquiries as well.
2) Note: At CL (and in many other states), no forfeiture if contest in good faith with probable cause.
POA, health care proxies, and living wills
- Powers of Attorney: a written authorization for agent (i.e. “attorney-in-fact”) to act on behalf of grantor of power. General or specific:
a) Non-Durable Powers of Attorney: POA revoked by operation of law at grantor’s death or incapacity; effective until agent receives notice of death or disability
b) Durable Powers of Attorney: lasts even if the grantor is incapacitated; requires specific language that POA “shall not be affected by my subsequent disability or incompetence.” - Health Care Proxies: type of durable POA that appoints agent to make health care decisions on behalf of grantor, triggered when grantor become incapacitated and remains effective during incapacity.
a) Requirements: must be in writing, signed by grantor (or at his direction) witnessed by at least 2 adults, and must state that grantor appeared to execute the proxy free from duress. - Living Wills: generally states individual’s desires should he become terminally ill or vegetative state.
a) Directs whether to administer, withhold or withdraw (1) life sustaining procedures; (2) artificial nutrition or hydration; and (3) treatment to alleviate pain.
b) Key: NY Court of Appeals held patient’s right to decline treatment guaranteed by CL (also federal constitutional fundamental right).
