Wills - Courtney Flashcards
Decedent?
Estate?
Probate?
Non-probate assets?
Consanguinity?
- Decedent: deceased person
- Estate: real & personal property decedent leaves at death
- Decedent’s probate [administration]: process distributing assets of the decedent’s estate
- Probate: process of legally establishing the validity of a will before a judicial authority
-
Non-probate assets: do not require a will or intestacy to pay to others upon death [joint tenancy, life insurance, pension plans, trusts]
- Exception: life insurance policy beneficiary is decedent’s estate
- Consanguinity: blood relationship b/w persons
TIP: On Bar exam, distinguish b/w probate assets & non-probate assets.
Testate?
Intestate?
Partial intestacy?
Heirs?
Issue/descendent?
Devise/legacy/bequest (to a devisee)?
- Testate: person dies with a will
- Intestate: person who dies w/o a will
- Partial intestacy: portion of Decedent’s estate is not testate
- Heirs: persons, including surviving spouse & state, entitled under statutes of intestate succession to property of Decedent
- Issue/descendent: all lineal descendants from an ancestor in any degree
- Devise/legacy/bequest (to a devisee): testamentary disposition of real or personal property [gift]
Testacy proceeding?
proceeding to establish a will OR determine intestacy
- FL: Heir must survive Decedent by a single second to take as an heir or devisee [if not, treated as having predeceased decedent for purposes of succession]
Order of Intestate Dstribution?
- Surviving Spouse
- Descendants
- Parents
- Siblings ► nieces & nephews
- Grandparents ► Uncles & Aunties (1/2 goes to decedent’s paternal kindred; 1/2 goes to decedent’s maternal kindred)
- In-Laws (widowed decedent’s stepchild may inherit through intestacy if Decedent had no relatives of his own to inherit)
- Escheats to State
INTESTATE DISTRIBUTION:
Surviving Spouse but NO Descedents?
SS takes entire intestate estate
INTESTATE DISTRIBUTION:
Escheat
no party entitled to inherit under statute,
property escheats to the state
INTESTATE DISTRIBUTION:
No SS or SS Not Entitled to Take,
then estate property passes in following order:
Pass in following order:
-
Survived by descendants: Intestate estate passes by representation [per capita] to decedent’s descendants, estate divided into as many equal shares as there are descendants
- a) If descendants[multiple] predecease w/ their own descendants: descendants’ descendants in same generation nearest to decedent, will combine total shares of descendants’ into one share and split it evenly.
- b) If descendant predeceases decedent and does not have descendants to take their share: its as though descendant was never born
- Survived by only parents: intestate estate to parents to split equally
- If the decedent is survived by neither spouse, descendant, nor parents: goes to ascendant’s descendant’s [by representation to brothers & sisters]
- grandparents
Special Problems of Intestate Distribution:
Adopted Children?
- Transplantation theory w/ regard to adopted children. Adopted child loses any relationship w/ natural parents & is treated as natural born child of adoptive parents. [adoptive parent become natural parents]
- Generally adopted person loses all rights to inherit from or through natural parents (birth parents)
- If a natural parent dies & child later adopted by surviving parent’s new spouse: child is still an heir of decedent & adoptive parent
- If natural parent remarries & consents to adoption of his child by his new spouse: adopted child has right to inherit from both of his natural parents and adoptive parent.
-
Adoption by estoppel/Equitable/virtual adoption:
- Person promised to adopt the child, allowed the child to live with her, treated the child as adopted, but died before adoption – child can inherit.
- Must provide clear and convincing evidence
- Does NOT block child’s right to inherit through birth parents
Special Problems of Intestate Distribution:
Stepchildren?
have no inheritance rights unless they’re adopted,
Unless, can prove adoption by estoppel
- Adoption by estoppel: attempt to adopt thwarted by technical defect, or stepparent Ks w/ natural parents to adopt but for some reason does not
Special Problems of Intestate Distribution:
Half-blood Relatives?
siblings of decedent by only one of his parents;
they take by representation in half [as child of one parent]
- Relative with only one common parent or grandparent
- Only collateral relatives can be half‐bloods
- When intestate decedent dies with both whole‐blood and half‐blood heirs:
- Half‐blood heirs take 1/2 as much as whole‐blood heirs.
Special Problems of Intestate Distribution:
Non-marital Children?
born out of wedlock, considered child of his mother & her kindred for purposes of the intestate inheritance
Father if:
- Natural parents participate in marriage ceremony (even if marriage was void);
- Paternity established in court; or
- Father ackowledges paternity in writing.
* Clear & convincing evidence man was father of child
* Rebuttable presumption – child born in wedlock is child of mother’s husband.
Special Problems of Intestate Distribution:
Posthumous Children?
person conceived before the decedent’s death but born alive thereafter, deemed alive at decedent’s death
- Must survive a second after Decedent’s death
INTESTATE DISTRIBUTION:
Advancements?
[Inter vivos gifts to an heir by the decedent & dies intestate]
-
If a person dies intestate as to all or any part of his estate, property that he gave to an heir in his lifetime is treated as an advancement against the estate only if:
- Acknowledged in a writing as an advancement by Decedent or heir.
- If property an advancement: will reduce intestate share
- If property recipient dies before decedent: property not taken into account in division & distribution of intestate estate
Will?
Requirements?
doc. executed by Testator/Testatrix that takes effect on death of Testator/Testatrix
Requirements: [must be intended by testator to be a will &]
- Capacity
- Written
- Signed by Testator
- Attestation must occur via 2 witnesses or bring will before notary & have notary acknowledge signature
- usually disposes of a person’s property, but not necessary; may also be a codicil or testamentary instrument that: Appoints executor; Nominates guardian; Revokes/revises another will; Expressly excludes/limits rights of an individual to succeed via intestate succession
A valid will must be:
- WRITTEN; reasonably permanent record
-
Signed by testator OR in testator’s name by some other individual in testator’s conscious[earshot] presence & by testator’s direction [testator must request]; and
- Sign end of the will & any name (w/ intent to adopt as Testator’s own doc)
- Assisted signatures: do not require testator request/direction,
- Publication: not required to tell anyone, not even witnesses
-
Harmless error rule: alteration will be validated if proponent proves by clear & convincing evidence that Testator intended alteration to constitute part of his will
- Integration rule: all pages present at execution of will become part of will
-
Signed in presence of 2 witnesses (witness actual signing of will or acknowledgment of previous signature by testator or proxy)
- Must sign will in presence of Testator AND in presence of each other.
- Witnesses may sign anywhere on the will.
- Any competent person may witness a testator’s signature on a will – even named beneficiary
- Testamentary Intent: Testator must have a present intent to make the document his will.
Probate the Will?
“validating” a will; probated will then becomes a legal instrument that may be enforced by executor/personal representative of the estate
- Probate is the process of transferring legal title to property from a person who has died to that person’s heirs or beneficiaries.
Self-Proving Will?
will simultaneously/after execution & attested by acknowledgement of testator & affidavits of attesting witnesses, each made before an officer authorized to administer oaths & evidences by officer’s certificate, under official seal
- Self-proved will satisfies requirements for execution w/o testimony of any attesting witness, upon filing of will, acknowledgment & affidavits. Thus, it avoids problems w/ hostile or unavailable witnesses.
Qualifications of Witnesses?
Interested Witnesses?
- Ability to observe Testator affix his signature,
- Coupled w/ ability to comprehend the nature of the act
Interested Witnesses: has a pecuniary interest in the will
- Under UPC: interested witness has no bearing on witness’s signature, but may give rise to implications of fraud, undue influence or duress
Holographic Wills?
written by the testator, entirely in his own handwriting
- NOT VALID IN FLORIDA, even if validly executed in another state.
Conditional Wills?
Testator may choose to make a particular gift, or a will, conditional on the (non-)occurrence of a specific event
- Condition must be clear on the face of the will
- Extrinsic evidence not allowed to make a facially valid will conditional
Codicils?
an instrument executed subsequent to a will
that alters/explains/adds to/subtracts from/conforms the will
by way of republication.
[therefore, can be either holographic or attested, but must match original will]
- A codicil, by its nature: refers to another document
- As to the original will: republishes the will to which it refers [makes will as though written for the first time on the date of the codicil]
- A validly executed codicil cures any defects in execution of original will
Classification of Testamentary Distributions:
Specific bequest or specific devise?
gift that’s identified & distinguished from all other things of the same kind, and is satisfied only by the delivery of the particular thing
- use of possessive words (e.g., “my”) indicates that a specific legacy was intended.
General devise?
one payable out of general assets of the decedent’s estate and not in any way separated or distinguished from other things of like kind
Demonstrative bequest/devise?
bequest/devise of fixed sum to
be paid out of a particular fund
- Payable from a particular fund or from the sale proceeds of a particular item
- If fund or item are no longer part of the estate or insufficient to pay the devise: Devise will be satisfied out of the general estate.
- Ex: Tina’s will devises $5,000.00 to her cousin, Charles, to be paid out of the proceeds of the sale of her Acme Corporation stock. Even if Tina dies without owning any Acme stock from which to satisfy the gift to Charles, Charles will still be entitled to the $5,000 to be paid from the general assets of Tina’s estate because the gift is a demonstrative devise.
LIMITATIONS ON TESTAMENTARY DISPOSITIONS:
Elective Share
- Share surviving spouse is entitled to demand if unhappy with what she is receiving from the decedent’s estate (either through intestacy or will).
- May take elective share in addition to the right to homestead, exempt property, and family allowance
- 30% of the elected estate in Florida
LIMITATIONS ON TESTAMENTARY DISPOSITIONS:
Procedure for Election
- SS must make her election w/in: 6 months after notice of administration or 2 years after Decedent’s death
- Spouse can withdraw petition anytime before final judgement
- May be filed by spouse or her attorney-in-fact
- IF attorney‐in‐fact or guardian files petition, court must determine whether election is in spouse’s best interests.
- must give notice of time & place set for hearing to interested parties
- if notice given to all interested persons SS may petition court for an extension of time for making an election 9 mths after decedent’s death
- court in the county of decedent’s domicile
LIMITATIONS ON TESTAMENTARY DISPOSITIONS:
Property Subject to Election?
Elective estate includes?
SS of a decedent who dies domiciled in this state has a right to an elective share amt equal to: 30% of the elected estate
Including:
- Decedent’s probate estate;
- Other property held in right of survivorship;
- Property in a revocable trust;
- Cash surrender value of insurance policies on the decedent’s life;
- Death benefits payable under retirement plans;
- Certain transfers within one year of the decedent’s death;
- Property transferred in satisfaction of the elective share;
- Property held in a discretionary trust for the settlor, or a trust where the decedent had the right to income or principal; AND
- Accounts or securities in “Pay on Death” accounts and decedent’s interest in accounts held in right of survivorship.
LIMITATIONS ON TESTAMENTARY DISPOSITIONS:
Satisfaction of Elective Share:
In absence of any provision in will,
elective share is satisfied as follows:
- Property passing to the surviving spouse
- Includes:
- Any devise to the spouse in decedent’s will;
- Any share the spouse takes by intestacy;
- Life insurance policies payable to the spouse;
- Retirement benefits plans payable to the spouse; and
- The value of property spouse is getting by right of survivorship or otherwise.
- Includes:
- Any balance is satisfied from the decedent’s estate or revocable trusts.
Children Not Mentioned in the Will:
If Testator fails to provide for his child born/adopted after making his will–unless failure was intentional–receives?
- After-born/adopted child: receives an intestate share [same amount would have received had estate been intestacy]
- Exception: will devised all or substantially all of estate to other parent of omitted child and that other parent survives Testator
- Testator had children living when will was executed & devised portions of estate to them, omitted after-born/adopted child entitled: share in portion of Testator’s estate devised to Testator’s then living children as if child had been given an equal share of that portion of the estate. [prior kids got gifts, then after born kid gets gifts too]
- If Testator had living children at time of will’s execution but children received nothing: gets nothing [be weary that codicil republish the will …so if its republished w/o new kid then he gets nothing]
INTERPRETATION OF WILLS?
Wills are always to be construed in accordance with the discernible will of the testator.
[intention of the testator governs]
INTERPRETATION OF WILLS:
Integration?
proponent must show will offered for probate is actually the will that the testator intended to make, & no insertions or removals of pages from the will have occurred
INTERPRETATION OF WILLS:
Incorporation by Reference?
UPC recognizes common-law doctrine of incorporation by reference, which permits inclusion by reference of unattested documents as part of a will if:
- Writing was existence at the time of execution of the will;
- Language of the will manifests this intent; &
- Describes the writing sufficiently to permit its identification
Wills & Estates:
Disqualifications:
Slayer Act?
Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the felonious and INTENTIONAL killing of any other person: may not receive any benefit as a result of Decedent’s death
- If NO murder conviction/charges brought: probate court may make its own determination based on greater weight of the evidence–lower standard of proof than in criminal case–regarding forfeiture.
- Slayer rule does not apply: accidental, reckless or negligent deaths
-
Distribution of Property
- 1) Estate property: deemed to have predeceased decedent
- 2) Joint tenancy: loses right of survivorship, & joint tenancy converts to a tenancy in common [slayer keeps his half & other half distributed to decedent’s estate]
- Proceeds of Insurance: if slayer is beneficiary or assignee of life insurance policy of decedent, or joint policy holder, proceeds will be paid to the decedent’s estate or contingent beneficiary is one is noted
- Affects killer’s rights only – killer’s descendants may be able to take: By intestacy per stripes distribution or by application of the anti-lapse statute.
Wills & Estates:
Effect of Divorce and Remarriage Upon Wills?
Both end heirship rights
[if not divorced & remarries then considered constructive divorce]
- Ex‐spouse is treated as if she predeceased the testator.
- Any provisions in favor of ex‐spouse are generally void.
- Remarriage of the parties does not revalidate the provisions voided by the dissolution or annulment.
Wills:
Disclaimer of Property Interests:
For a devisee to refuse a devise?
file a formal disclaimer, in whole or in part, any interest in or power over property
- In order to be effective, a disclaimer must be: Be in writing or other record; Declare the disclaimer; Describe the interest or power to disclaim; Be signed by the disclaiming party; & Be delivered or filed
- It is permissible for a disclaimer to be only: partial
- It is impermissible to disclaim where: disclaimant is not barred by a written waiver of right to disclaim; disclaimant has not accepted the interest; disclaimant has not voluntarily assigned, conveyed, encumbered, pledged, or transferred the interest; or judicial sale of the interest has not occurred
Wills:
Disclaimer of Property Interests:
Effect of Disclaimer?
- Disclaimer relates: back to date of death of decedent
- Disclaimant is treated as having: predeceased testator
-
Two reasons people disclaim are: Beat the rights of the creditor &Taxes
- Under the UPC, a disclaimer cannot be used: to abridge the right of any person to disclaim interest under another statute & do not affect the additional disclaimer requirements for inheritance tax or other statutory purposes [can’t use disclaimer to alter payouts; therefore, if you do disclaim heirs will still receive the same % of the estate]
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Ademption by Extinction?
If, at time of Testator’s death, specifically devised property is NOT part of the testator’s estate, the gift adeems (fails)
- Ademption by extinction can only occur: in reference to specific request
- Ex: Tom Testator executes a will devising “my 5 antique cars” to Alan. If Tom dies owning the 5 cars, then Alan receives the entire collection. If Tom had sold 3 cars before his death, the specific devise partially adeemed by those cars, and Alan would receive only the remaining 2 cars. If Tom had no cars upon his death, then the entire specific devise adeems.
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Conveyance of an Bequested Property?
If specifically devised property is sold, transferred or mortgaged by a conservator or agent acting by a durable power of atty for an incapacitated principal, the devisee has the right to general devise [pecuniary gift] equal to the sale price, unpaid loan amount, insurance proceeds, or the recovery
- Any amount due on property subject of specific bequest to a legatee, then legatee due to receive payments still due on the specific bequest after the decedent’s death
- Item no longer in existence, but there is a replacement prop then beneficiary gets replacement property
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Ademption by Extinction:
Non-Ademption; Balance:
A specific devisee has a right to specifically devised property in the testator’s estate at the testator’s death and to:?
- Any balance of the purchase price, together with any security agreement, owe by a purchaser at the testator’s death by reason of sale of property;
- Any amount due for the condemnation of the property and unpaid at the testator’s death;
- Any proceeds unpaid at the testator’s death on fore or casualty insurance on or other recovery for injury to the property;
- Any prop owned by the testator at death & acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest of s specifically devised obligation
- Any real property or tangible personal property owned by the testator the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Ademption by Extinction:
Non-Ademption; Balance:
Stock?
- Dispositions of stock are often troublesome b/c it is unclear whether Testator intended a general or a specific bequest.
- If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive pronoun makes this a specific disposition of the identified shares (i.e., those the testator owns); if she owns none at her death, the bequest is adeemed.
- If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator owned no such shares at her death, the court interprets this as a general bequest, and Leonid is entitled to the value of 50 shares of Vladivos stock as of the date of the testator’s death.
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Ademption by Satisfaction?
similar to idea of an advancement; it occurs when a testator makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with intent that provision of will be thereby satisfied [applies to general legacies]
- inter vivos gift may satisfy a will bequest: in part or in whole [full or partial]
- Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:
- The will provides for deduction of the gift;
- Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise; or
- evisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Encumbered Property: No-Exoneration Rule?
If a person is given property under a will and the property is subject to a lien: the beneficiary takes the property subject to the obligation
- However, if Testator in the will specifies for the executor to pay the debt on the property: then property is taken free of the mortgage, but it must be specific language in the will to pay the debts on the particular prop, not simply “I direct my executor to pay all my debts,” b/c that will not address the mortgage issue its boilerplate …doesn’t amount to direct request to pay mortgages
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Class Gifts?
exists when Testator makes gift to number of persons as group, and size of group cannot be determined until class closes
-
Closing of Class—Maximum Membership: As a general rule: class closes on date the will becomes effective [testator’s death]
1. Rule of convenience- person must be born before the period of distribution in order to share in class gift
2. Distribution date: date when immediate or postponed class gift takes effect in possession or enjoyment
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Lapse?
when a disposition fails b/c
the beneficiary predeceases testator
- Lapsed dispositions pass to the residuary estate, or, if there is no residuary provision, they pass by intestacy
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Anti-Lapse Statute?
lapse of gift prevented, if intended beneficiary left descendants, then they take by representation, but beneficiary must be descendants, grandparents, or descendant’s of decedents grandparent’s
- Exception: testator specifies otherwise [e.g., Blackacre goes to Shayla & if she does not survive me then to Asia]
- If a gift does lapse: falls into the residue [IF THERE IS A RESIDUARY CLAUSE THEN THERE WILL BE NO INTESTACY, B/C IT ADDRESSES ALL THE DECEDENT’S PROPERTY]
- If there are multiple residuaries: if one dies [w/o heirs] then the remaining residuaries will split the amount
- If one residuary legatee slays the testator: slayer loses right & then the remaining residuaries will split the amount
- If the only residuary slays the testator: then residuary clause will fail and result in partial intestacy
CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:
Lapse:
CLASS GIFTS?
The UPC requires that words of survivorship for class gifts: need express language; therefore, need to state that “anti-lapse statute does not apply.”
REVOCATION & REVIVAL OF WILLS:
Wills may be revoked by:
Revocatory act
Subsequent will
Divorce
- If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced: all will provisions in favor of ex-spouse are revoked, unless, evidence testator did not want provisions revoked
REVOCATION & REVIVAL OF WILLS:
Revocatory act
- A “revocatory act on the will” includes: tearing, burning, canceling, writing over, scratching out, obliteration, or destroying will of any part of it w/ intent to destroy [but it must be original not a copy]
- Must be done w/ an intent to revoke will
- If testator does not perform revocatory act, but directs another to perform act [by proxy]: it must be in conscious presence of & by direction of testator
- Florida does permit partial revocation of a will or codicil by physical act.
- Will that was in testator’s possession cannot be found or is found torn or otherwise destroyed: Presumption that testator physically destroyed will with intent to revoke it.
REVOCATION & REVIVAL OF WILLS:
Subsequent will
- Revocation by a subsequent will revoke prior will in its entirety or any part thereof
- A will, duly executed and proved, that contains an express clause of revocation revokes all former wills.
- If subsequent will does not expressly revoke previous will, execution of subsequent will wholly revokes previous will: if it is inconsistent with prior will [partial or whole revocation is dependent upon whether inconsistency affects a part or the whole]
- Testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if: completely disposition of testator’s estate
- If a subsequent will does not fully dispose of Testator’s estate, it will revoke the previous will: only to extent that it is inconsistent with prior will
REVOCATION & REVIVAL OF WILLS:
Dependent Relative Revocation
Revoke a will in anticipation of a subsequent will, but the subsequent will is invalid the courts will reinstill the first will b/c it assumes a prefererence for will over intestacy
REVOCATION & REVIVAL OF WILLS:
Revival of Revoked Wills
- The general rule is that: once will revoked, it is no longer authoritative [1st will, then create a 2nd. If 2nd revoked it doesn’t go back to 1st], but it can be republished, re-stated or re-executed(sign it again) [revived]
- However, it can be revived: if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that testator intended the previous will to take effect as executed
- Republication can be made by: codicil, re-executing (simply resigning [re-attesting the will])
- A codicil to a will: restates revoked will & makes it written as of the day of the codicil
CONTRACTS TO MAKE A WILL; JOINT OR MUTUAL WILLS:
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be established only by:
- Provisions of Decedent’s will stating material provisions of K;
- Express reference in Decedent’s will to a K & extrinsic evidence proving terms of K; or
- Writing signed by Decedent evidencing K
UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal.
PROBATE OF WILLS:
Proof of Lost Wills?
- If a will is traced to the testator’s possession & cannot be found after death: presumption that the will was revoked
- If the will is not in possession of the testator: then presumption is not raised
- Copies may only be used if the original will was in the hands of third party [atty] and that party has lost it
NON-TESTAMENTARY TRANSFERS:
Gift: inter vivos transfers require:
donative intent, delivery & acceptance
Constitutes an irrevocable gift once accepted
NON-TESTAMENTARY TRANSFERS:
Gift: causa mortis:
an inter vivos gift made w/ the understanding that the donee takes possession upon delivery, but does not acquire title unless donor dies of a feared imminent death
- Elements: (1) donative intent, (2) delivery & (3) donor must dies from an imminently feared death [not normal fear of death, but some dangerous impending matter]
- Delivery is mere possession until the death, when done obtains title
WILL CONTEST?
In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate on the ground that the will is invalid for some reason.
The grounds for contest of a properly executed will are:
- Lack of testamentary capacity
- Undue influence
- Mistake: very little a court will do
- Fraud: if can be proven will not be given affect
WILL CONTEST:
Lack of testamentary capacity?
- Lack of sound mind & memory
- An insane delusion is defined as: mere figment of the imagination or a belief that is so against the evidence & reason that it must be the product of derangement
- A person who suffers from an insane delusion is not necessarily deprived of capacity to make a donative transfer.
- A particular donative transfer is invalid, however, to the extent: that is was a product of an insane delusion [leave my estate to the Peter Pan, because we both can fly]
- Mere eccentricity does not constitute an insane delusion. Similarly, a suspicion with some basis in fact is not an insane delusion.
WILL CONTEST:
Undue influence?
sufficient to void a will if: wrongdoer exerted such influence over donor that it overcame donor’s free will & caused donor to make a donative transfer that donor would not otherwise have made
undue influence: only invalidates portion unduly influenced
WILL CONTEST:
Undue influence:
Presumption of Undue Influence?
- reliant[need your help], dominant-subservient[control over] OR confidential relations AND
- suspicious circumstances surrounding the preparation, formulation or execution of the will
Relevant factors:
- Extent to which donor was in weakened condition
- Extent to which the alleged wrongdoer participated in preparation of will
- Did testator receive independent advice from an atty or competent disinterest party
- Created in secrecy or haste
If these factors are shown by clear and convincing evidence, the burden of proof returns to the proponent of the will to show that the gift or bequest was not the product of undue influence.
WILL CONTEST:
Undue influence:
Fraud?
if can be proven will not be given affect
- If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud then falls into the residue, or, if there is no residuary clause, passes by intestacy.
- If the entire will is tainted, all the property will pass by intestacy.
