***XI. WILL CONTESTS Flashcards
- [July 1992] T was 93 years old when he executed his will. Six months earlier, T had been adjudged incapacitated; a guardian was appointed to manage his affairs. Trial judge granted the heirs’ motion for a directed verdict on the ground that T did not have testamentary capacity.
Was this action proper?
who has the burden of proof on capacity
who and when can bring a will contest:
53,
no, reverse and remand
#1: Adjudication of incapacity involves a \_\_\_\_\_\_different legal test\_\_\_\_\_\_ (capacity to contract, to manage one's affairs) than capacity to make a will. #2. Jury could find that the will was executed during a _moment he met the 4-prong test\_\_. The adjudication of incapacity is admissible as evidence of lack of testamentary capacity, but it will not support a directed verdict.
[Feb. 2002] After the will is admitted to probate (upon proof of its proper execution), contestants have burden of proof on capacity, and have two years in which to file a will contest. For contest based on fraud [July 2008] or forgery, contestants have two years after its discovery; person under disability [including minor] can file contest w/in two years after disability removed. One who accepts benefits under a will is estopped from contesting it, but [July 2008] only if he had full knowledge of the facts on which contest might be based when he accepted the distribution. (fraud doesnt prevent)
Only interested parties can bring a will contest: Persons with an economic interest that would be adversely affected by the will’s probate.
[July 2005:] Heirs, legatees under earlier will whose interest would be defeated if this will probated.
[Feb. 1993:] B could not contest Will # 2 that bequeathed $100,000 to him, when Will #1 (purportedly revoked by Will #2) bequeathed $50,000 to B—but if B were an heir he could contest both wills.
[July 2005:] Executor named in Will #1, having duty to offer it for probate and defend it, had standing to contest Will #2 which would revoke it. [Feb. 1985:] Close personal friend, not named as legatee in an earlier will, has no standing to contest T’s will.
- [Feb. 2003] Assuming that a person is of sufficient age and capacity to make a will, discuss briefly what must be alleged and proved to establish undue influence.
While evidence of undue influence is usually circumstantial, these alone and by themselves are not enough:
Undue influence: Existence of a testamentary capacity subjected to and controlled by a dominant influence or power. Contestant, who has burden of proof, must prove:
- EXISTENCE and exertion of the influence;
- EFFECT was to overpower the mind and will of the testator; and
- PRODUCT was will (or gift in will) that would not have been made BUT FOR the influence.
- Mere opportunity to exert influence. Mere fact that one child (who received major share of estate) lived with mother, wrote checks for her, balanced the checkbook, helped on income tax, held a power of attorney . . . is not evidence that the opportunity was taken advantage of.
- Mere susceptibility to influence due to illness, age. Fact that Mother was very old, had broken her hip, had memory lapses, took Valium . . . this is not evidence of undue influence.
- Mere fact of unnatural disposition–i.e., that some children take less than others or are excluded entirely.
need evidence to show that influence actually exerted (the D. actually took advantage of above 3)
55.
involving eccentric behavior by the testator and then advises that e.g. a nephew is considering a will contest. You are then asked to discuss the likelihood of the nephew’s success if he contests the will. If you see this kind of question [Feb. 1999: Testator was discharged from mental hospital six months before he signed his will; facts suggest eccentric behavior and possible undue influence],
1. List four-point test for testamentary capacity; then discuss facts in context of the legal test.
remember that it has no clear answer. You can’t decide whether the testator had capacity or was subjected to undue influence; these would be fact questions for the jury. For this type of question:
- [July 2005] Tillie, 90 years old and in poor health, resides in Nursing Home. She tells Rob, the nursing home CEO, that she wants to write a new will leaving everything to charity, as her family hasn’t visited her for over two months. Rob explains that the nursing home is a non-profit corporation that depends on donations for its operating expenses. With Tillie’s consent, Rob writes a will that (a) revokes all earlier wills and (b) leaves everything to the nursing home. Two nurses sign as attesting witnesses. Do Tillie’s children have grounds to contest the will?
- Fraud in the inducement where mother wrote new will after son falsely told her that her other son had died in an accident. [Question also raised “undue influence” issues.]
Undue influence? (Begin answer by laying out three-point test. Then: [Feb. 2011]
Where a will is procured by one in a confidential relationship who benefits from the will, there is an __inference__ of undue influence, which is strengthened when there are _______suspcious circumstances _______.
If an inference is raised, while this doesn’t affect the burden of proof (contestant still has burden of proof), will proponent has the burden of going forward with evidence that no undue influence was exerted. If the will proponent does not produce sufficient rebuttal evidence, the inference satisfies the contestant’s burden of proof.
yes; By advising her as to her will, Rob established a confidential relationship. Also, Tillie was totally dependent on nursing home and its staff for her support and maintenance.
layout 4-prong test to get points!!!
- Larry Lawyer, in preparing a will for Tillie, inserted a clause that bequeathed $25,000 to Larry’s wife Nellie, who is Tillie’s niece.
________ Is the bequest to Nellie valid?
yes; If a lawyer drafts a will that makes a gift to the lawyer, or to his parent or a descendant of a parent, or to his employee, or to their spouses, the gift is void unless beneficiary was related to testator within the third degree of consanguinity (birth or adoption) or affinity (marriage).
she is within the 3rd degree; In determining relationships by consanguinity or affinity, you count and then add (i) steps from Tillie up to common ancestor, and (ii) steps down from common ancestor to Nellie: Step #1–Tillie’s parent, Step #2–Tillie’s brother or sister, Step #3–Tillie’s niece Nellie.
- Pearl is retained as a live-in caretaker for Herb, 80 years old and in poor mental health. Pearl secretly marries Herb and then disappears, and reappears as Herb’s surviving spouse (and his children’s stepmother!) after Herb’s death. An action to annul the marriage on ground that Herb lacked capacity to consent to the marriage can be filed if the marriage took place within
______________ of Herb’s death and the action is filed within ____________ after his death.
3 years; 1 year
- [Feb. 2002] T’s will bequeaths $10,000 to his son Sam, and the rest of his estate to his friend Bill. The will contains a no-contest (“in terrorem”) clause: “Should any beneficiary contest this will, he shall forfeit all gifts hereunder, and shall take no part of my estate.” Sam contests the will on grounds of incapacity and undue influence but loses the contest, and T’s will is admitted to probate. Does Sam forfeit the bequest?
yes
[Feb. 2002, Feb. 2004] No-contest clauses in wills and trusts are given full effect unless trial court finds that the contest was brought in good faith and with just cause (i.e., it wasn’t a “pay me and I’ll go away” suit designed to extract a settlement). Thus Sam does not forfeit the legacy IF the trial court finds he had just cause for bringing the contest.
No-contest clauses are strictly construed. They do not apply to will construction suit or [July 1994] action brought against executor alleging improper administration of estate. Reason: Does not challenge validity of the will. [Feb. 2000] Contest by guardian of incapacitated beneficiary did not trigger no-contest clause; gift should not be forfeited by action of someone other than beneficiary.
will contest SOL?
- [Feb. 2002, Feb. 2003] Assuming the testator is of legal age, what must be alleged and proved to show that a testator had sufficient mental capacity to make a will?
within 2 yrs after the will has been admitted to probate; but if based on fraud or forgery may be within 2 yrs after discovery of the fraud or forgery
Did testator have sufficient capacity to:
- Understand the nature of the act he was doing? (he was writing a will)
- Know the nature and approximate value of his property?
- Know the natural objects of his bounty?
- Understand the disposition he was making?
Evidence of T’s capacity or lack thereof must relate to the circumstances at the time the will was executed, or shortly before or thereafter. The more distant in time a particular fact may be, the less significance it has on the question in issue: Did T have capacity when the will was executed. [Feb. 1990: Six months before signing his will, T had been in a mental hospital suffering from paranoia and manic depression: Evidence was too remote to be relevant to condition at the time the will was signed.]
