Wills: Mental Capacity

Question 1

To execute or revoke a will, testator must be:

Answer 1

a) Must be 18 years or older
b) Must be of sound mind

Question 2

4 prong test for sound mind (testator needs ability to know):

Answer 2

(a) Does the testator understand the size and composition of his estate? (b) Does the testator recognize the parties who would be the natural objects of his bounty (c) Does testator understand the disposition he is making by will (d) Does testator understand how prongs 1,2,3 operating together form a testamentary plan that is meant to take effect after his death

Question 3

Who has burden of proof?

Answer 3

Challenge: to prove that testator had a lack of testamentary capacity

Question 4

Mental capacity challenges that can be brought to render a will invalid:

Answer 4

A) Insane delusion B) Undue influence

Question 5

What is insane delusion?

Answer 5

A false conception of reality that testator adheres to despite all evidence to the contrary

Question 6

How to win insane delusion challenge

Answer 6

The party bringing the contest must show that the insane delusion could have caused the disposition

Question 7

What happens to the will with an insane delusion challenge?

Answer 7

If any or all of the will is found to be subject to testator’s insane delusion, that portion or the whole will be voided completely

Question 8

Insane delusion test

Answer 8

a) Whether the insane delusion materially affected the contested disposition of the will b) But for the insane delusion, the testator would not have disposed of her property as she did

Question 8

A donative transfer is procured by undue influence if:

Answer 8

a) The undue influence overcame the testator’s free will b) But for the undue influence, the testator would not have disposed of her property as she did

Question 9

3 prongs test for undue influence

Answer 9

a) Susceptibility b) Opportunity c) Disposition

Question 10

Susceptibility

Answer 10

Was testator susceptible to undue influence

Question 11

Certain categories of people tend to be seen as susceptible

Answer 11

(a) Elderly, (b) Chronically ill, (c) Co-habitants who have never married

Question 12

Confidential relationships

Answer 12

Certain confidential relationships raise a presumption of undue influence if one of the parties is a beneficiary under the will (a) Lawyer/client (b) Doctor/patient (c) Caregiver/patient (d) Priest/penitent (e) Familial relationships **if any of these presumptions are raised! it’s up to the alleged influencer to rebut that presumption.

Question 13

Opportunity

Answer 13

did the influencer have the opportunity AND desire to commit the influence

Question 14

What is desire?

Answer 14

Desire is presumed if the item left by will is something of value

Question 15

Presumption of desire can be rebutted, how?

Answer 15

the alleged influencer can rebut the presumption of desire if he can show that: a. He didn’t know that testator had anything of value OR b. He didn’t know he was to be included in the will

Question 16

Disposition

Answer 16

Was the disposition under will a result of undue influence or did it occur because of some other independent factor

Question 17

Remedy for undue influence

Answer 17

Constructive trust against the tort feasor and the property will pass to the next party in line

Question 18

Duress (a form of undue influence) occurs when:

Answer 18

Undue influence evolves into duress when: F. Em. P P extreme mental, physical, psychological, or financial coercion impacts or changes testator’s intent

Question 19

remedy for duress

Answer 19

Constructive trust

Question 20

Fraud (2 types)

Answer 20

a) Fraud in the execution in the will b) Fraud in the inducement

Question 21

Fraud in the inducement

Answer 21

i. Fraud occurs when a person deliberately misleads a testator to the benefit of the influencer ii. Example: Testator: I am going to leave X to Alice. Defrauder: No, Alice passed way. Testator: Oh, well then I’ll leave it to you

Question 22

Fraud in the execution in the will

Answer 22

i. Fraud occurs when a person intentionally misrepresents the character or content of a document the testator is signing OR ii. Tampering with a document after the fact iii. Example: (a) A person intentionally misrepresenting the content or character of a will (b) A person tricks decedent into a signing a document that purports to be the signer’s will, but decedent doesn’t realize it

Question 23

Remedy for fraud

Answer 23

a) The portion of the will that was procured through fraud will be struck down. b) Constructive trust and the property will pass to the next party who is able to receive it

Question 24

TORTIOUS INTERFERENCE WITH AN EXPECTANCY

Answer 24

A) Only applies if the petitioner has already proven the underlying tort involved – so it applies only where undue influence, duress, or fraud has been shown a) Would only sue under this tort if the defrauder has additional assets b) Award is punitive damages

Question 25

B) Elements for tortious interference with an expectancy (plaintiff must prove all)

Answer 25

a) Existence of an expectancy – plaintiff must prove the would have received a gift b) Intentional interference by tortious behavior c) Causation -- Reasonable certainty that the expectancy would have been realized but for the interference d) Damages

Question 26

What does a "no contest clause" do?

Answer 26

A) Eliminates challenges

Question 27

What does a "no contest clause" guard against?

Answer 27

B) No contest clauses are designed to guard against baseless will contests, HOWEVER a) They do not work if the suspected contester is not left something in the will that he might be hesitant to part will C) No contest clauses will be disregarded if the contester can show probable cause for the contest he’s bringing D) Plaintiff’s must have standing to file a will contest a) They must be able to show that but for the provisions in the will, they would have been able to inherit