Will Contests

Front 1

What is the general rule for mistakes in wills?

Back 1

-Absent suspicious circumstances, it is conclusively presumed that the testator read the will and intended its consequences.
- thus the plain meaning of the will will not be overturned by extrinsic evidence

Front 2

What is a latent ambiguity?

Back 2

A misdiscription.
- The error is not evident by looking at the will. e.g. wrong adress for property.

Front 3

What THREE types of extrinsic evidence are available to clarify a latent ambiguity?

Back 3

1. “Facts and circumstances” evidence (e.g., Evidence about the testator, his family, the claimants under the Will and their relationships to the testator, the testator’s habits and thoughts, etc.)
2. Evidence of the testator’s declarations of intent to third parties (e.g., Thomas told a friend he had bequeathed $10,000 to his nephew James John Jones.)
3. Evidence of the testator’s statements to the attorney who prepared the Will

Front 4

What happens if extrinsic evidence does not cure a latent ambiguity?

Back 4

Then the gift fails because there is no ascertainable beneficiary.

Front 5

What is a Patent Ambiguity?

Back 5

an obvious error on the face of the will.
- ex: Sluggo’s Will provides: “I give the sum of twenty-five dollars ($25,000) to my good friend Steve.”

Front 6

What TWO types of extrinsic evidence is admissible to clarify a patent ambiguity?

Back 6

1. “Facts and circumstances” evidence (e.g., Evidence about the testator, his family, the claimants under the Will and their relationships to the testator, the testator’s habits and thoughts, etc.)
2. Evidence of the testator’s statements to the attorney who prepared the Will

Front 7

What is a conditional Will?

Back 7

a will that expressly provides that it will be operative only if some condition is met?

Front 8

What are the two arguments to be made if there is a conditional will on the exam?

Back 8

1. The Will is a conditional Will. Probate would be denied
because the condition did not occur; AND
2. Condition merely reflects his motive orinducement for making a Will.

Front 9

What is a joint will?

Back 9

A will of 2 people in one document (STUPID)

Front 10

What is the only way a joint will (contract not to revoke a will) can be created?

Back 10

- can only be established by an express statement of intent.
- The Court will not find that a contract of non-revocation was intended merely because the Joint Will uses possessive pronouns (e.g., we, us, our) in making dispositions of the combined estates.

Front 11

What happens if a party breaches a joint will by making a later will with inconsistent provisions?

Back 11

1. Probate new will
2. Impose a constructive trust in favor of the original beneficiaries.

Front 12

What are the FOUR requirements for testamentary capacity?

Back 12

Testator must have sufficient capacity to:
1. understand the nature of the act (i.e., He must understand that he was writing a Will);
2. the nature and approximate value of his property
3. Natural object of his bounty (i.e., He must know his family members and loved ones); AND
4. the dispositions (gifts) he was making
- Note Less than the capacity required for making any other legal document.

Front 13

What are the THREE things required for undue influence?

Back 13

Contestant has the burden to prove:
1. The existence and exertion of an influence
2. the effect of such influence was to overpower the mind and will of the testator; AND
3. The product is a will, or a gift in a will, which would not have happened but for that influence.

Front 14

What THREE things alone are not sufficient to constitute undue influence?

Back 14

1. opportunity to exert influence
2. susceptibility to influence because of age or illness
3. unequal dispositions

Front 15

What are the TWO things required for an inference of undue influence?

Back 15

1. a will makes a gift to one in a confidential relationship; AND
2. the person was active in preparing the will

Front 16

What happens when there is a bequest to the drafting attorney?

Back 16

- Apply Putnam Scrutiny:
- Even if no objection is filed, the Surrogate’s Court automatically inquires into whether a bequest to the drafting attorney was voluntarily made

Front 17

What TWO things must the drafting attorney do if they are an appointee?

Back 17

1. A drafting attorney who is named as executor of the testator’s estate must give written disclosure to the testator that:
i. any person can be named as an executor not just an attorney
ii. the executor receives a statutory comission, which a % set forth by statute; AND
iii. The attorney will also be entitled to legal fees for representing the estate
2. The testator/client must sign the written disclosure in the presence of two witnesses

Front 18

What happens if a drafting attorney fails to comply with the appointment statute?

Back 18

The attorney will only receive half of the statutory comissions.

Front 19

What is an no-contest (In terrorem) clause?

Back 19

A clause in the will that says if anyone objects to my will they will get nothing.

Front 20

What is the default rule for no-contest clauses?

Back 20

The cause is given full effect even if there was probable cause to challenge the will.

Front 21

What are the FOUR exceptions to application of a non-contest clause?

Back 21

1. claiming forgery or if the will was revoked by a later will (not a physical act) if the Surrogate’s Court finds that there was probable cause for the contest.
2. the will contest is filed on behalf of an infant or an incompetent
3. A construction proceeding to construe the terms of the will
4. Objection to the jurisdiction of the court

Front 22

What is a safe harbor provision to a no-contest clause?

Back 22

A person who is considering contesting a will that
contains a no-contest clause may examine certain things in discovery without violating the clause.

Front 23

What are the four things in the safe harbor clause?

Back 23

1) Person who prepared the will;
2) The attesting witnesses;
3) The will proponents; and
4) The nominated executors.

NOTE: A no contest clause can be drafted to preclude these types of inquiries as well.