Wills only

Question 1

Grounds for contesting a will

Answer 1

lack of capacity or testamentary intent

Question 2

Standing to Contest a Will

Answer 2

generally, only those with a pecuniary interest have standing to contest

• includes beneficiaries, someone who should be a beneficiary or someone who would benefit if the decedent has died intestate

Question 3

No-contest clause

Answer 3

Clause in a will providing that a beneficiary loses their interest under the will if they contest it.

(but not if they’re just challenging executor appointment, jurisdiction, or for interpretation purposes)

Majority rule - no forfeiture of interest if beneficiary challenges in good faith and with probable cause

Minority rule - no contest clauses given full effect regardless of challenging beneficiary’s cause of intent

Question 4

Undue Influence

Answer 4

A will is invalid if executed while testator was subject to undue influence that effectively overrode testator’s free will.

Will contestant has burden of proof to show:

1. Influence was exerted on testator;
2. Testator’s mind and free will were overpowered; and
3. The will would not have been executed absent undue influence

Question 5

Presumption of undue influence

Answer 5

Arises if:

1. a confidential relationship existed between testator and beneficiary who exerted influence; and
2. the beneficiary participated to a significant degree in executing, drafting, or procuring testator’s will

[then burden shifts to the proponent of the will to show no undue influence]

Question 6

Fraud

Answer 6

Where a will/provisions are the result of fraud, it is invalid.

Must be shown that:

1. Testator has been intentionally deceived about:
   a. character or content of the will
   b. facts intrinsic to the will that would induce the will
2. Testator acted in reliance on the misrepresentation (i.e. he would not have executed the will if he knew the facts)

Question 7

Common methods of transferring property outside of probate

Answer 7

1. Inter vivos gift
2. joint tenant bank account
3. Totten Trust
4. Life insurance