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5 Cards in this Set
- Front
- Back
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Standing |
Will contests in general: Play ping pong w/ facts; so no correct answer as to predicting outcome* Any person who would take more as an heir if there was no will or as a B under a prior will |
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Lack of Testamentary Capacity Burden of proof on contestants |
1. Did T understand nature of act he was doing? 2. Did T know the nature & character of his property? 3. Did T know the natural objects of his bounty? (people leaving property to) 4. Did T understand the disposition he wished to make? (big picture understanding of estate plan) -Old age, physical frailty, sickness, failing memory or vacillating judgment not inconsistent w/ testamentary capacity if T had prerequisites Evidence of T's capacity/ lack of must relate to circumstances at time will was executed; shortly before/after. More distant in time, less valuable No conclusive presumption: if adjudicated incompetent & guardian appointed, still goes to jury -->does not support a directed verdict |
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Insane delusion |
Distinctive form of testamentary incapacity: Where T is otherwise sane, but will/gift is a product of an insane delusion having no basis in fact or reason & adheres against all reason |
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Undue Influence Burden of proof on contestants, must show: |
1. Existence & exertion of influence 2. Effect is to overpower the mind & will of T 3. Result = a will that would not have been executed but for the influence (difficult to show) Influence is not undue unless free agency of T was destroyed & the will produces was not the desire of T but of the one exerting the influence; usually circumstantial Not enough to beat but-for test: (need something more) 1. Mere opp. to exert influence 2. Susceptibility to influence due to illness or age 3. Fact of "unnatural disposition" -- that some kids take less than others/excluded. Presumption: (maj.) UI arises when showing principal B of will who is in CR to T (Atty-client, priest, dr.) and also draws/ procures execution of the will Suspicious circumstances may show UI (relative-stranger thrusts himself w/ T when T, because of mental/ physical condition/ age is susceptible to influence & T writes will disinheriting kids) |
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"No contest" Clause |
Will party who challenges it lose his share? Wins contest: No Loses contest: (maj.) clause will not be enforced as long as had PC for contest; enforced if frivolous/unfounded |
