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146 Cards in this Set
- Front
- Back
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What is intestate succession?
Testate succession? |
Intestate succession is dying without a will. Testate succession is dying with a will.
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In intestate succession, who is the person who dies? In testate succession?
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intestate - the intestate
testate - the testator |
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In intestate succession, what passes at death? Testate succession?
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intestate - the intestate estate
testate - the testate estate |
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In intestate succession, how does property pass? Testate succession?
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intestate - intestate succession via statute of distribution
testate - testate succession via the will. |
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In intestate succession, what is the nature of the transfer? Testate succession?
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intestate - real property: descent; personal property - distribution
testate - real property: devise; personal property: bequest |
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In intestate succession, who are the takers or property? Testate succession?
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intestate - heirs
testate - beneficiaries (real property: devisee; personal property: legatee) |
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In intestate succession, who oversees the estate (who is the estate's personal representative)? Testate succession?
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intestate - administrator
testate - executor |
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In intestate succession, what gives the estate's personal representative authority to administer the estate? Testate succession?
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intestate - letters of administration
testate - letters testamentary |
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Do devisees and legatees have an interest in the assets listed in a will before the decedent dies?
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No. They have a mere expectancy interest.
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In GA, must an administrator post bond before administering the estate?
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Yes.
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How is the administrator of an estate selected?
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Selected by unanimous consent of the heirs UNLESS:
(1) the sole heir is the surviving spouse AND (2) an action for divorce or separation was pending. |
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What is the standard required for probate court to appoint an administrator of an estate?
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The court will appoint, as administrator, whomever serves the best interests of the estate.
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Must an administrator be a US citizen? A resident of GA?
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The administrator need be neither a resident of GA nor a citizen of the US.
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Must notice be given to the heirs before an administrator is appointed?
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Yes, unless there is a need for immediate action (e.g. crops & cows are dying too) in which the case the court may appoint a temporary administrator.
Temporary administrator's job: collect and preserve estate assets. |
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Must an executor of an estate post bond before administering the estate?
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No.
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How is an estate executor selected?
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(1) Person named in the will;
(2) If none can't/won't serve, then the probate court appoints someone to be known as the administrator CTA. |
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What is required in order for a probate court to issue an order for "no administration necessary" for the administration of an intestate estate?
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(1) consent given by all of age competent heirs or by a guardian ad litem for those who are not;
(2) either no debts of the estate OR all creditors consent; and (3) all heirs must sign and notarize an agreement re distribution of the property and the same is attached to the petition. |
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If the decedent has a will but there will be no probate (assets pass by other means), must the will still be filed with the probate court?
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Yes.
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When must a will be offered for probate?
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If/when will is found and it will be probated, this must occur within 5 years from the date any other petition is filed concerning the estate.
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When is permission granted to probate a will in common form? Must notice be given to anyone?
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Permission granted immediately. No need to provide notice to anyone, but the probating of the will is not conclusive for 4 years.
Executor's rights to the estate: collect and preserve estate assets. |
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When is permission granted to probate a will in solemn form? Must notice be given to anyone?
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Permission granted immediately. All heirs and will beneficiaries must be notified or the propounders of other wills must be notified.
This probating of the will is effective immediately. |
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What court has jurisdiction over the probate of an estate?
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The Probate Court of the county in which the decedent was domiciled at death.
If the decedent is domiciled outside of GA at death, then the county in which the property owned by the decedent is located has jurisdiction over the probate of the estate. |
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What Probate Court has jurisdiction over the probate of an estate if the decedent has property (land) that is located in both GA and another state?
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The out of state court will seek ancillary probate in the county where the property owned by the decedent is located.
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What are the powers and duties of the personal representative once they are appointed?
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(1) marshal (gather) estate assets
(2) File an inventory with both the Probate Court and with the heirs/will beneficiaries (3) give notice to all creditors and pay off estate debts (but note: no debts need be paid for the first 6 months after death) (4) Obtain permission to sell estate property (unless there is a will that grants it). (5) Distribute the estate to all heirs and/or beneficiaries. (6) File annual and final tax returns and close probate. |
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How does title to real property pass and how is such property distributed in intestate succession? In testate succession?
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Title to real property passes directly to the heirs subject to being divested by the appointment of an administrator.
In a testate estate, the executor takes title to all property upon appointment, transfers to the beneficiaries through an executor's deed. |
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Can an administrator/executor be relieved of some of the requirements of administering an estate?
If so, how? |
Yes, either through
(1) the will's terms, or (2) unanimous consent of all heirs.beneficiaries. |
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Where must challenges to a will (caveats) be brought (in what court)?
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Typically brought in the Superior Court, but in large counties (populations over 96,000), the caveat may be heard by the Probate Court IF THE JUDGE IS AN EXPERIENCED LAWYER.
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Under GA law, must a party survive the probate/administration of the decedent's estate to take under testate/intestate succession?
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No. To take under testate/intestate succession, you must survive the decedent's death, not probate or administration of the decedent's estate.
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Under GA law, can in-laws inherit from the decedent under intestate succession?
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No. Except for the spouse of the decedent, heirs at law are always RELATED by blood or adoption, never marriage.
Step-children and in-laws never take under intestate succession. |
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When a decedent leaves no surviving spouse but does leave issue and has other living relatives, who is entitled to take under intestate succession?
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The decedent's issue takes over other living relatives.
Rule: Descendants trump ancestors and collaterals. |
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If a decedent has both living grandchildren and great-grandchildren, can the grandchildren take under intestate succession?
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No.
Rule: Issue of a more remote degree from the decedent CANNOT inherit if their ancestor (issue of a closer degree) CAN. |
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Decedent only has a spouse, no lineal descendants. Who takes what in intestate succession?
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Spouse takes the entire estate.
Note: Estate insolvent? Spouse can seek a year's support. |
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Decedent has a spouse and lineal descendants. Who takes what in intestate succession?
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Spouse takes a child's share, but never less than 1/3 of the estate.
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Decedent has no spouse but has lineal descendants. What takes what in intestate succession?
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Descendants take per stirpes (equal shares).
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Decedent has no spouse, no lineal descendants, but does have living parents. What takes what under intestate succession?
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Parents take equally, unless a parent previously abandoned the decedent. The abandoner gets nothing.
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Decedent has no spouse, no lineal descendants, no parents, but does have living siblings. Who takes what in intestate succession?
What if all siblings predecease the decedent, but there are living nieces and nephews? |
Siblings take equally per stirpes.
If no living siblings but living nieces/nephews, the nieces/nephews take equally. |
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What constitutes being a survivor (surviving the decedent) under GA law?
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Just be alive once the decedent dies, or if in gestation one must be born alive.
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What is the rule under the GA simultaneous death act?
What if property is held in a joint tenancy with a right of survivorship, and there is no evidence of who died first? |
One must survive the decedent by an instant to be deemed a survivor.
If there is insufficient evidence that persons have died other than simultaneously, the property of each person passes as though he/she survived the other, absent a contrary provision in the governing instrument. If property is held with a joint right of survivorship and there is no evidence of who died first, the joint tenancy is severed, and the parties are deemed to hold as tenants in common. |
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Who is considered a child in intestate/testate succession?
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(1) includes a biological or adopted child (included children that are virtually adopted)
(2) excludes step-, foster-, or grandchild (unless adopted) |
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Who can an adopted child inherit from?
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Generally, adopted child can inherit from and through adoptive parents, and NOT biological parents (adoption terminates the parental relationship between the biological parent and child).
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What is a virtual adoption?
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A virtual adoption is an equitable adoption. If there was an unperformed contract to adopt the child and and adopting parents died before the contract was performed, the court may deem the child to be adopted for inheritance purposes.
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Are adopted children considered members of a class gift made to children?
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yes, unless that child is adopted out of the class (meaning that the biological children of the decedent are adopted by someone else).
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From whom does a non-marital child inherit from?
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Non-marital child always takes from/through the biological mother unless her parental rights have been terminated. Non-marital child can inherit from their father if the child proves certain conditions.
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When can a non-marital child inherit from/though its biological father?
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Child must prove one of the following:
(1) court entered an order that legitimates the child or otherwise establishes paternity. (2) during the child's lifetime, the father (i) signed a sworn affidavit attesting to paternity or the child's birth certificate, or (ii) married the mother. (3) the father and mother sign an acknowledgment of legitimacy. (4) The court finds clear and convincing evidence of paternity. (5) A rebuttable presumption of paternity es established by genetic testing showing 97% or more probability of paternity. |
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Can a court order exhumation of the decedent's body in order to prove paternity?
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Yes, if there is no other way to procure the genetic material.
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Who is considered a parent?
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(1) always includes biological or adoptive parent.
92) excludes step-, foster, or grand parent. |
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Who inherits from an adopted child who has no issue?
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The adopted child's estate transfers up to and through adoptive parents, not to and through biological parents.
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Who takes if a non-marital, non-adopted child dies?
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The child's estate passes automatically to the maternal side, and 1/2 of the father's side if one of the following conditions are met:
(1) court order establishing legitimacy or paternity (2) father signed affidavit attesting to paternity or the child's birth certificate or married the child's mother (3) father and mother sign an acknowledgment of legitimacy (5) 97% or greater probability of paternity established by genetic testing |
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What happens if a minor child dies but one or both parents have abandoned the child?
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The parents take nothing.
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Who is considered the decedent's spouse?
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Anyone lawfully married to the decedent at death, including parties separated but not divorced
Excludes: non-marital partners, engaged couples, parties to an illegal or void marriage. Note: Common law marriage abolished in GA for any relationships entered into post Jan. 1, 1997. |
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What is the slayer statute? How does it operate?
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If one person kills another person "feloniously and intentionally," that slayer will not take from the decedent victim's estate (whether testate or intestate). The slayer is treated as though s/he predeceased the victim.
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For the slayer statute to control, what standard must the nature of the killing be proved by?
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The nature of the killing must be proved by clear and convincing evidence rather than beyond a reasonable doubt.
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For the slayer statute, what constitutes a "felonious and intentional" killing?
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A killing that constitutes one of the following under GA criminal law:
(1) murder (2) felony murder (3) voluntary manslaughter |
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What is an advance?
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A lifetime gift to any issue charged against his/her portion of the intestate estate.
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What is required in order for a valid advancement to be made?
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(1) A written acknowledgment that the transfer is intended to be an advancement.
(2) the writing must be signed by either the transferor within 30 days of the transfer, or the transferee at any time. |
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How is the value of an advancement determined?
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The value of an advancement is determined by the value on the date required.
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How do you determine how much is distributed from the estate if advancements have been made (what are the steps)?
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91) Determine "hotchpot": decedent's estatte + all qualified advancements
(2) Distribute hotchpot under relevant intestacy scheme (3) Subtract amount of advance from any advancee's share. If the amount of the advance exceeds the advancee's share, disregard both the advance and the amount and start over (4) Check your work. Total all monies distributed, which should equal the decedent's estate value, not the hotchpot |
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What is a disclaimer? What is the effect of a disclaimer?
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A disclaimer is where an heir or beneficiary disclaims or refuses to accept a gift that is designated for them. Any heir may disclaim/renounce a gift in whole or in part.
Effect: qualified disclaimer means property passes as though disclaimant predeceased decedent, unless will (if existing) provides otherwise, |
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What are the requirements for a valid disclaimer?
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(1) Disclaimer must be accomplished before acceptance;
(2) Disclaimer mus tbe in a signed writing; and (3) Disclaimer must be filed with the court or personal representative within 9 months of the decedent's death |
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In GA, what happens if party A who is entitled to receive a life estate in real property disclaims? Must the people who are supposed to inherit from A survive A?
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No, they must only survive the disclaimer, not the actual death of A.
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What is a negative will?
What is the effect of a negative will that is not valid? |
A negative will is one where the decedent has disinherited certain heirs at law.
The provisions of a negative will have no effect on any property passing through intestacy, so if the will or certain provisions are invalid, the decedent's estate (or part of the estate) will pass through intestate succession. |
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What are will contracts?
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Contracts to either make/not make/revoke/not revoke a will.
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Are will contracts valid in GA?
If so, what is required for a valid will contract? |
Yes, IF they are otherwise enforceable under contract law.
The requirements include a writing and the signature of the party to be charged. |
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If the existence of a valid will contract can be established, what remedies can the contract beneficiary receive against the decedent's estate?
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(1) Damages = value of the property that was to the devised to the beneficiary
(2) Quantum Meruit = value of the services that the beneficiary has performed in reliance on the contract (3) specific performance = a constructive trust |
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Is the existence of a joint or mutual alone for a court to deem that a will contract was created?
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No.
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In GA, what are the basic requirements for someone to make a valid will?
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Testamentary intent + 14 years of age.
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What constitutes testamentary intent?
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(1) The testator must intend to transfer the property listed in the will at death and not before.
(2) The testator must intend the specific piece of paper to be the will. (3) The testator must mean for the will to operate as a valid will (no sham or joke). |
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What state's laws apply when probating a will if a testator who died while domiciled outside of GA owned property in GA? Where may the will be admitted for probate?
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(1) Original probate in GA if the will meets the GA formalities and has not been probated elsewhere; or
(2) Ancillary probate in GA upon proof that it has been properly probated in another jurisdiction, in which case it must only meet the requirements of that jurisdiction. |
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Does GA recognize oral (noncupative) wills?
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No.
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Does GA recognize holographic or unattested wills?
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No.
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What are the requirements for a valid attested will?
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(1) Written
(2) signed by the testator or by another in the testator's presence and at testator's direction (proxy) (3) Either testator's signature or acknowledgement of same must be in the presence of the witnesses (4) 2 witnesses, who each must signed at the end of the will; at the execution and in testator's presence. |
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What is the GA rule for presence of witnesses when executing a will?
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GA follows the line of sight test (minority view), which determines that one is in "the presence of" the other if s/he could see the other's action (or possibly, if arguing broadly, that s/he could have seen the other's action if s/he actually looked).
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In GA, what is the special order that the will must be executed?
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There is no special order as to how the will must be executed.
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In GA, must the testator sign at the end of the will (subscription)?
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No.
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In GA, is publication (will contains a statement to the effect of "this is my will") of the will required?
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No.
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In GA, must witness to a will sign in each other's presence for the execution to be valid?
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No.
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In GA, what must an individual be able to do in order to be deemed a proper witness?
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(1) Recollect
(2) Observe (3) Tell the truth (4) Communicate |
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In GA, what is the minimum age for someone to be eligible to witness a will?
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14 years of age.
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What happens if one of the witnesses to a will is also a beneficiary under the will?
Exception? |
If a witness is also a beneficiary under the will, the will is not voided, but the witness/beneficiary's share will be purged.
Exception: If a witness is also a beneficiary, and there are also two other disinterested witnesses present who also execute the will, then the witness-beneficiary's gift is not purged. |
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What must a will witness testify to at probate?
How many witnesses are necessary at probate? |
Will probate requires the testimony of 1 of the witnesses to the testator's sound mind and other execution requirements.
Where all witnesses lack competency (they either cannot recollect, observe, tell the truth or communicate), the mere existence of signatures may not suffice. |
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What is an attestation clause of a will?
What is the effect of an attestation clause? Is an attestation clause necessary? |
Although not necessary, an attestation clause may recite the testator's sound mind and execution compliance. This can appeal before the witness' signatures or after (if independently signed).
effect: A rebuttable presumption is created that the execution formalities were met even without witnesses, unless contestants/caveators overcome. |
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What is a self-proved will?
Effect? |
A self-proved will contains a separate affidavit (essentially the same as an attestation clause but its own document) signed by the testator and witnesses, and notarized (turned into an affidavit).
This document has a second set of signatures. A rebuttable presumptino is created that the will was properly executed and attested, so unless there is a will contest, no witness testimony is necessary. |
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What is a codicil to a will?
What are the requirements for a codicil? |
A codicil is a formal amendment to the will.
A codicil must be executed in the same manner as a valid will. |
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Does revoking a codicil mean that the original will is revoked?
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No.
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Does revoking a will mean that the codicil is presumed to be revoked?
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Yes.
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How does the execution of a codicil affect the execution date of the original will?
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The will is deemed executed on the date the codicil was executed.
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What are the basic types of revocation of a will?
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(1) revocation by subsequent instrument
(2) revocation by physical act (destroying the will) (3) revocation by operation of law |
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What are the different ways a will can be revoked by a subsequent instrument?
When is each type of revocation effective? |
(1) express - will #1 revoked will #2 expressly (stating something to the effect of "this will revokes all former wills and codicils."). Revocation is effective immediately.
implied - will #1 revoked will #2 impliedly, as where will #2 disposes of all of the testator's property (i.e. contains a residuary clause) or where will #2 contains dispositions entirely inconsistent with those of will #1. Here, the court will try and read both wills together and probate both. If inconsistent, the later will prevails in whole or in part. Revocation only effective if later document still exists at the testator's death. |
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If both will #1 and will #2 are invalid, how is the decedent's property distributed?
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Through intestacy.
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If will #1 is invalid and will #2 is valid, how is the decedent's property distributed?
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Will #2 controls. Probate will #2.
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If will #1 is valid and will #2 is invalid, how is the decedent's property distributed?
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Will #1 controls. Probate will #1.
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If both will #1 and will #2 are valid, how is the decedent's property distributed?
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The rules of express and implied revocation apply. Look to see whether either type of revocation is present when reading the wills together.
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What is required for a valid revocation of a will by physical act?
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(1) act = destruction or obliteration
(2) intent to revoke (presumed where the will is lost or destroyed before or after the testator's death. May rebut by a preponderance of the evidence, but you must sill prove the will's contents (copy and the will's validity). |
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In GA, can a will be revoked by the physical act of a proxy (one acting at the testator's direction)?
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Yes. This must be done at the testator's direction and testator must have the intent to revoke the will by having it destroyed.
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What happens if there are multiple executed wills and one is destroyed by a physical act?
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There is a presumption that the revocation extends to the other will.
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Does Georgia recognize partial revocation by a physical act?
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NO. GA takes an "all or nothing" approach to partial revocation by physical act.
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In GA, what happens to a will if a material provision is destroyed or obliterated?
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The whole will fails.
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In GA, what happens to a will if an immaterial provision is destroyed or obliterated?
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The whole will stands as originally written.
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When does a limited revocation by operation of law arise?
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When the testator marries or has or adopts a child AFTER the execution of the till, unless the testator's will contemplated the event.
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How does a limited revocation of a testator's will operate if he marries or has/adopts a child after the execution of a will that does not contemplate such an event?
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Any such revocation caused by a non-contemplated subsequent birth, adoption, or marriage occurs only to the extent necessary to provide the new child/spouse with his or her intestate share. The rest of the will remains intact.
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What happens if a testator leaves to a subsequent (non-contemplated) spouse more than what was contemplated in the will (ex: testator makes his will and leaves something to A and later marries A)?
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The spouse takes more than what s/he would have received in intestacy, or the greater amount.
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What happens if a testator provides for his/her spouse, and the couple later divorces?
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The ex-spouse is treated as though s/he predeceased the testator.
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Assume 2 valid wills. Will #2 expressly revokes will #1. If the testator later revokes will #2, is will #1 revived?
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In GA, the first will remains revoked unless intent to revive can be established by the circumstances surrounding the revocation of the second will.
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What is dependent relative revocation?
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This is where there is a revocation of a will based upon a mistake of fact or law, and the court in equity will either "list" the mistaken revocation or allow the property to pass through intestacy depending to the testator's probable intent.
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What comprises the actual will?
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The will plus any pages/clauses actually present at the execution that are intended to be part of the will.
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When can a page (or act) no present at the will execution be considered part of the will and given testamentary effect?
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(1) incorporation by reference (extrinsic document)
(2) Acts with Independent Significance. |
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What are the requirements for a document to be incorporated by reference into a will?
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(1) document IN EXISTENCE AT THE TIME OF EXECUTION
(w) will manifests an intent to incorporate the document (3) will describes the document sufficiently to permit identification of the document |
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What constitutes an act with independent significance that can be included within a will?
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The act must have some significance OTHER THAN to CHANGE THE TESTATOR'S WILL.
Ex: Whatever car I own at my death to my sister; My car to whomever is my business partner at death. |
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What happens when a beneficiary named in the will dies before the testator?
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General rule: a taker must "survive the decedent" to acquire property under testate/intestate succession. If not, the transfer is said to "lapse."
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What happens when there is a lapse in the main provisions of the will?
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The property that was devised goes to the residuary (if there is one) or through intestacy unless saved by an anti-lapse statute.
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What if there is a total lapse in the residuary of a will (i.e. all residuary takers predecease the testator).
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Property goes through intestacy unless saved by an anti-lapse statute.
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What happens if there is a partial lapse in the residuary clause (e.g. only 1 of the residuary takers predeceases the testator)?
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Majority rule: property goes to other residuary takers unless saved by an anti-lapse statute (GA rule).
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What happens if there is a lapse under a class gift?
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Property passes to other members of the class unless saved by an anti-lapse statute.
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How does the GA anti-lapse statute operate?
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(1) If you have any beneficiary that predeceases the testator AND the beneficiary left surviving descendants, then the bequest/devise goes to those descendants absent "contingency language" (i.e. "If s/he survives me") in the will.
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What happens to the beneficiary's gift if there is a "constructive" predecease (slayer statute, disclaimer or divorce)?
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The constructively predeceased beneficiary's descendants take ONLY IF they are also issue of the decedent.
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What is a specific gift? Demonstrative? General? Residue?
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specific - identifiable bequest/devise one could point to
demonstrative - general amountfrom specific, identifiable source general - general amount, no specific identifiable source residue - what's left over |
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What is abatement?
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This occurs when a will holds testamentary gifts that are identifiable, but the estate does not have enough to pay all debts and all bequests and devises. Gifts are abated (reduced) in a certain order for the purpose of paying off those debts.
Order: 1) residue, 2) general, 3) demonstrative, 4) specific |
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What is ademption by extinction?
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If a SPECIFIC bequest or devise is not in the decedent's estate at death, it is extinguished (gone) and the beneficiary gets nothing.
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What does the beneficiary of a specific gift receive if the gift is lost, stolen, destroyed or condemned within a certain time period before the testator's death?
What is this time period? |
The beneficiary gets the benefit of any insurance proceeds or condemnation award.
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What happens if a specific gift is traded for or converted into other property.
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The beneficiary may get "replacement property" of a like kind and character.
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Does the beneficiary of a specific bequest/devise get the benefit accessions and accretions (increases and decreases in the property itself, not property value)?
What about those who are supposed to receive general gifts? |
GEnerally, beneficiaries of specific bequests/devises get the benefit of post-execution, pre-death increase in property, but beneficiaries of general ones do not.
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Are stock dividends considered to eb a specific or general gift?
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Usually, stock dividends usually go to the residuary taker instead of to the specific taker.
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How to tell if a bequest was general or specific (what are the key words)?
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"My" or "all".
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When property passes that is encumbered by some indebtedness, what usually happens?
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Exoneration of liens: The estate pays off the indebtedness on property to permit the beneficiary's acquisition free and clear, UNLESS there is a contrary provision.
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When a provision in a will makes the provision ambiguous, will the court admit extrinsic evidence to construe the will?
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Yes. Whether the ambiguity was patent (on the face of the will) or latent (when trying to math will with facts), the court will admit extrinsic evidence to show the testator's intent.
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What if there is a mistake in the will? Will the court correct the mistake?
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The court will not correct the mistake UNLESS: the mistake was about a child believed to be dead.
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What happens if the testator made a mistake about a child believed to be dead (left the child nothing because he though the child was dead)?
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The child will take a share equal to that given to other children (which may be nothing). If no other children, the child may receive an intestate share if doing so will not reduce the amount to that child's surviving parent.
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What is the general rule for construing a will?
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Look to the testator's intent, and find it from the four corners of the will, but if there are inconsistencies, the later provisions prevail (unless former purported to transfer fee simple absolute adn later clearly manifests intent to reduce).
Presume that testator intends a full disposition of property without any intestate aspects. |
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If a beneficiary/hear is missing but not believed to be dead (hostage), what will the court do in probate?
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Probate COurt may appoint a conservator.
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What happens if a person is missing and not heard from for four years?
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Person is presumed dead for purposes of succession.
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If a person is missing for 12 months, what may a party do in regards to determining their inheritance
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The missing person may be proved dead.
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What if a person is missing but it is known that they were exposed to specific peril with a high likelihood of death? How can their death be proven?
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Death may be proved at any time by clear and convincing evidence.
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What happens to the property of the decedent if there are heirs who cannot be found after a diligent search for a period of 4 years?
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Decedent's property escheats to the county board of education of the decedent's domicile at death.
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Who has standing to contest a will?
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A person who would lake under a prior will or intestacy.
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Who has the burden of proof in a will contest?
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The contestant unless the burden has been shifted.
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What are the grounds that a will can be challenged on?
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(1) lack of testamentary intent
(2) lack of testamentary capacity (3) undue influence (4) fraud |
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What constitutes testamentary capacity?
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(1) 14 years old or older
(2) of sound mind - able to understand a) nature of act doing; b) nature and extent of property; c) "natural objects" of her bounty (usually spouse/would-be heirs); d) disposition being made (3) Not suffering from monomania at the execution of the will. |
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What is monomania?
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Suffering from an insane delusion, an irrational belief with (1) no basis in fact/reason and ot which (2) testator adheres to against all facts (evidence) and reason.
Insanity on one particular subject - aliens, superstitions, witchcraft, paternity |
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What factors alone won't necessarily establish a lack of testamentary capacity?
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(1) old age
(2) physical frailty (3) sickness (4) failing memory (5) vacillating judgment (6) habitual drinking or drug use (7) eccentricity (8) adjudication of incompetence; appointment of guardian |
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How must a caveator prove undue influence?
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Contestant must affirmatively established
(1) existence and exertion of the influence (2) overpowers testator's mind and free will (3) caused a result that would not have occurred but for the influence |
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How can a caveator raise the presumption of undue influence?
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(1) a person was in a confidential relationship to testator could include relationships between family members, friends)
(2) person assisted in the drafting/execution/procurement of the will |
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What happens if there was fraud in the inducement of drafting/executing a will?
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Fraud voids the will.
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What is a "In Terrorem Clause" or a "No Contest Clause"?
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Whoever challenges the will will lose their bequest specified in the will.
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What happens to a no contest clause if the whole will fails?
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The no challenge clause fails as well.
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When can a beneficiary who challenges a will with a no contest clause still be able to take under the will?
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If the challenge was made in good faith and/or with probable cause.
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What must be present in order for a no contest clause to be deemed valid?
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The clause must contain a gift over, a clause that specifies where the property will be distributed if there is a challenge raised.
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