WILLS & ESTATES Flashcards
Grounds for Will Contests: LACK OF Testamentary Capacity
Testamentary Capacity
To have capacity to make a will, the Testator MUST have sufficient capacity to?
(i) understand the nature of the act she/he is doing; (ii) know the nature, condition, and extent of her property; (iii) know the names of and her relationship to the natural objects of her bounty; and (iv) understand the scope and meaning of the will provisions
Execution Of Wills; Requirements
A will not wholly in the testator’s handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
Self Proving Affidavit
Grounds for Will Contests: LACK OF Testamentary Capacity
What is the standard of proving testamentary capacity?
Preponderance of the Evidence
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
When does the Presumption of capacity arises?
Upon proof of compliance with the statutory requirements for a valid will execution
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
Who has the burden of proving testamentary capacity?
The Will Proponent
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
What burden does the Will Contestant have once the presumption of capacity exists?
The burden of going forward with evidence to overcome the presumption
Grounds for Will Contests: LACK OF TESTAMENTARY CAPACITY
If the Contestant can persuade the court that the testator lacked capacity in making of the will, what will the court likely do?
The instrument will be set aside
What are the formalities of for valid will execution?
(i) the will must be signed by the testator; (ii) the testator must sign in the presence of both witnesses (present at the same time); (iii) the will must be witnessed by two attesting witnesses; and (iv) each witness must sign in the testator’s presence.
Burden of will proponent
To prove by a preponderance of the evidence that the testator had capacity and that the will was validly executed
Execution Requirements: Attestation
What effect does an attestation clause to a will?
Raises a presumption of due execution
Self-Proved Will
What effect does a self-proving affidavit give to a will?
Takes the place of Witness testimony
Self-Proved Wills
If there is no self-proving affidavit…
One or both attesting witnesses will have to testify that the will was properly executed
Execution Requirements: Witnesses
Under VA Interested Witnesses who are also beneficiaries
Does not apply in VA nor does it affect the validity of the will or bequest
Virginia does not have an interested witness rule that disqualifies or purges gifts to a witness who is also a beneficiary or family member beneficiary
Grounds for Will Contests
What grounds are available to challenge a will?
Grounds for Will Contests: FRAUD
To challenge a will based on fraud, who has the burden of proof and what must be proved?
The will contestant has the burden of proof. To prove fraud, the contestant must show that (i) made knowingly made false representations, (ii) with intent to deceive testator, (iii) testator was ignorant of the falsity, and (iv) testator relied on the false statements which induced to act to her injury
Grounds for Will Contests: FRAUD
What is the effect of a will if procured by fraud, either by misrepresenting the nature of the document or by misrepresenting facts that led to the will?
The will can be set aside
Grounds for Will Contests: FRAUD
What arises to a presumption of fraud?
If a will is DRAFTED by one in a confidential relationship with the testator and there are suspicious circumstances
Grounds for Will Contests:
Grounds for Will Contests:
Specific Devise Of Stock
The VA code provides that a specific devise of stock is entitled to securities of another corporation owned by the testator as a result of merger, consolidation, or other such action taken by the entity
Merely a change in form does not cause the gift to fail.
Lapse
Virginia Anti-Lapse Statute
Under Virginia, anti-lapse operates to save a lapsed gift if the predeceasing beneficiary was a grandparent or lineal descendant of a grandparent of the testator and left descendants who survivied the testator
Partial Intestate
Under VA law, when a will does not make a complete disposition of the testator’s estate, the remaining portion of the estate will pass to the testator’s heirs in accordance with the laws of intestate succession