Intent

Front 1

What are the Four Elements for Capacity to make a Will?

Back 1

(1) Testator must be at least 18.

(2) Testator must be able to understand extent of his property.

(3) Testator must know the natural objects of her bounty.

(4) Testator must know the nature of her act.

Front 2

What are Natural objects of one's bounty? (item 3 from capacity to make a will)

Back 2

(a) Spouse or domestic partner.

(b) Issue.

(c) Children.

(d) And those whose interests are affected by the will.

Front 3

What does it mean to know the nature of one's act? (item 4 from Capacity to make a will)

Back 3

(a) T must know that he is executing a will.

(b) However, T does not have to know all of the legal technicalities of the will.

(c) For example, one need not know the Rule Against Perpetuities.

Front 4

The capacity to make a will is the [blank] capacity recognized by law.

Back 4

Lowest. It apparently doesn't take much to have capacity to make a will.

Front 5

In looking to whether a person has capacity to make a will, at what time must T establish the 4 elements?

Back 5

At the time of execution.

Front 6

What result if Testator does not have capacity to make a will?

Back 6

(a) The entire will is invalid; property will pass by intestate succession; or,

(b) If Testator had a valid will prior to the invalid will that was purportedly revoked by the second, invalid will for which there was no capacity, then the first will is probated; without capacity, the second instrument could not have revoked the first.

Front 7

On the Exam, this issue often comes up where there Testator has a [blank] appointed for him.

Back 7

Conservator

Front 8

Also, look for a Testator with a [blank] disorder.

Back 8

Mental

Front 9

Is appointment of a conservator or diagnosis of a mental disorder sufficient to show incapacity?

Back 9

No. Still must use the 4 part test for capacity. The mental disorder or conservatorship can be a basis for arguing one of the parts. E.G. "T's mental disorder is relevant to establish that at the time of the execution, T did not know the natural objects of her bounty because . . . [facts]

Front 10

A will can also be attacked if, at the time of execution, T was suffering from an [blank]

Back 10

Insane Delusion.

Front 11

Four Elements of "Insane Delusion."

Back 11

(1) T had a false belief.

(2) False belief was a product of a sick mind.

(3) There is no evidence to support the belief, not even a scintilla of evidence.

(4) Delusions must have affected T's will.

Front 12

What are the consequences of a finding of insane delusion with respect to the will?

Back 12

Only that part of the will affected is invalid.

Front 13

As to the part of the will affected by insane delusion, what result?

Back 13

It will go to the residuary deviseee, or if none, or if the residue itself was infected by the delusion, by intestate succession.

Front 14

What is a residuary gift?

Back 14

The RG is the part of the estate not otherwise expressly disposed of in the will.

E.G. "Blackacre to A, Whiteacre to B, and the residue to C. C is the residuary devisee. C gets the balance of T's estate. C's gift could be $1.00 or $1,000,000.

Front 15

What is the Difference between "lack of capacity" and "delusion"?

Back 15

Lack of capacity goes to T's entire essence; it's so bad that T doesn't know his spouse.

Delusion, however, is a narrower issue and T is otherwise perfectly normal. E.G. a deluded belief that one's spouse is unfaithful.

Front 16

What are the Elements of Fraud in the Wills context?

Back 16

(1) There must be a representation;

(2) of a material fact;

(3) known to be false by the wrongdoer;

(4) for the purpose of inducing action or inaction; and

(5) in fact induces the action or inaction desired.

Front 17

Three Types of Fraud in Wills context:

Back 17

(1) Fraud in the Execution.

(2) Fraud in the Inducement.

(3) Fraud in preventing T from revoking the will.

Front 18

What are ways in which "Fraud in Execution" is likely to come up?

Back 18

(a) Someone forges T's signature to a will; or

(b) T is given a document to sign, told it is non-testamentary in nature, but it in fact is, and T signs.

(1) Example: T is given a document to sign, told it is a power of attorney, but in fact it is a will; T signs it.

Front 19

What are the consequences for finding fraud in the execution of a will?

Back 19

The entire will is invalid.

Front 20

What result if a will is rendered invalid due to fraud in the execution?

Back 20

Property passes by intestate succession, unless there is a prior will that was validly executed; a prior, validly executed will can not be revoked by a will fraudulent in its execution.

Front 21

Define "Fraud in the Inducement."

Back 21

Wrongdoer's representations effect the contents of the will.

Example: Son learns that T is going to soon execute a will leaving all his property to charity. Son tells T