Wills - Will Contests + Exam Approach

Question 1

Who has standing to contest a will?

Answer 1

1) Any potential intestate heir
2) Any beneficiary of a prior will

Question 2

Who has the burden of proof in will contests?

Answer 2

Burden of proof on a will contest is on the contestant

Question 3

Timing to bring will contest in CA

Answer 3

Will contest must be brought within 120 days after will is admitted to probate

Question 4

Grounds for a will contest/types of arguments

Answer 4

1) Argue the will wasn’t valid in the first place and can’t be cured by C&C evidence of harmless error

2) Insane delusions. This is a belief in facts that don’t exist and no rational person would believe. This is a valid will contest ground only if there is a connection/nexus between the insane delusion and the property disposition.

3) Undue Influence. (see next card)

4) Duress

Question 5

Undue Influence

Answer 5

3 elements:

1) influence actually exerted
2) influence overpowered testator’s mind and will reflects desires of influencer
3) Testator would not have made will with these terms but for the influence. Often check circumstantial evidence: testator’s vulnerability/ability to resist like in terms of their health, mental situation, influencer’s apparent authority/trustedness, all the actions/tactics used, and the equities of the result like cutting out close family for distant relative. Just because the opportunity for undue influence exists doesn’t mean you did it.

Rebuttable Presumptions of Undue Influence:
1) T and beneficiary are in confidential relationship (atty-client, caregiver-patient, BUT NOT being married)
2) Assisting T in procuring will, telling atty what it should say, safeguarding will, etc
3) Gift to person who transcribed will and was in fiduciary relationship with testator
4) Gift to certain care custodians

Conclusive Presumption of Fraud or Undue Influence:
1) Gift to atty who drafted will
2) Drafter’s relatives
3) Person living with drafter

Question 6

Duress

Answer 6

“Sign the will or I will kill you lol”

Analysis is same as with undue influence

Question 7

Fraud

Answer 7

Elements:

1) False representation
2) Knowledge of falsity by person making the statement
3) Testator reasonably believed the statement
4) Testator would not have executed this will but for the misrepresentation

Fraud in the Execution/Fraud in the Factum: T is deceived as to identity or contents of instrument

Fraud in the inducement: T knows will and contents but based on deception as to extrinsic fact

Question 8

Mistake

Answer 8

T made error but there is no evil conduct or bad acts.

2 types:
1) Mistake in the Factum/mistake in the execution: T is in error about identity or contents of the instrument. They lack testamentary intent. Like mistakenly signing a will rather than a letter would make the will invalid. But it’s tricky with…
2) Mistake in the inducement: Will is based on a mistake as to extrinsic fact. No remedy is available generally. Courts can’t reform on grounds of mistake with no evil conduct or express language in the will stating what the mistake is and what T would’ve done but for the mistake.

Question 9

Remedies for Will Contest

Answer 9

1) Deny probate. Usually the bad act permeates the whole will. But sometimes only part of the will is invalidated and the rest is probated.

2) If someone physically prevents you from making your will, court could impose a CONSTRUCTIVE TRUST in favor of the intended beneficiary under the will. CA recognizes a tort for tortious interference with expectancies.

In Terrorem Clause: Some people will try to prevent a contest on their will by including an in terrorem/forfeiture clause. It says if a beneficiary contests will, they forfeit the gift in the will assuming the will contest failed.. Goal is to scare beneficiary who would get more under intestacy to not raise a will contest in fear of losing it all. Will the courts enforce this? It WILL unless the contestant had “probable cause” to file the will contest. With probable cause, forfeiture will not occurred.

Question 10

Exam Approach

Answer 10

Step 1: Handle non-probate assets. Life insurance and such have that removed from estate first.

Step 2: Find out whether decedent died intestate or testate.
-> If intestate, go through distribution of property looking for special individuals like children or spouses.
-> If testate, determine validity of will. Then if will is valid look for issues:
–» Changes in property or people, construction issues, and will contests