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97 Cards in this Set
- Front
- Back
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What are the requirements for a valid will?
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1. Testator must be 18 or older at the time of execution.
2. Testator must sign will at the logical end. (Any mark, initials, 'X' will serve as signature if so intended. Signature may be another person at Testator's direction, in Testator's presence.) 3. Two attesting witnesses who witness Testator's signature (required only when Testator signs will by mark or someone signs for Testator) 4. The will must dispose of property, nominate a personal representative, or revoke or modify another will. |
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What happens if a portion of the will follows the testator's signature?
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1. If clause was present at time of execution then everything above the signature is good. Everything below it is bad.
2. If the clause was added after execution, the will is valid, but the addition is not. |
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T writes a document in her own handwriting that reads: 'This is my last will. I revoke all earlier wills. I leave everything to the YMCA.' T signs the instrument. Is it admissible to probate?
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Pt. of Q: no witness
In PA, the will would be valid because no witnesses are required if the testator signs. In some other states, 'holographic' wills are allowed and entitled to probate if: in testator's own handwriting and signed by testator |
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'I give my faithful nurse Nell the sumer of $30K.' Nell is one of two attesting witnesses to the will. Is the will admissible to probate?
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Pt. of Q: Nell is an interested witness.
PA - Nell wins because she is supernumerary (she is not necessary). Most States - have abolished the interested witness rule. 'A will or any provision thereof is not invalid because the will is signed by an interested witness.' Nell wins. Some States - a necessary witness-beneficiary takes lessor of (i) amt given in the will, or (ii) intestate share. Nell loses. |
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What is a self-proved will? What are the effects of a self-proved will?
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1. At time will is signed by testator and 2 attesting witnesses or some time thereafter, in T's lifetime
2. T and witnesses sign self-proving affidavit 3. under oath 4. before notary public. 5. Affidavit recites all elements of due execution. Effect: a) Formalities of execution are conclusively presumed (but not mental capacity, lack of fraud, undue influence, etc.) b) the will can't be contested for want of formalities. 2 witnesses are REQUIRED for this in PA *If will not self-proving then to enter into probate get the two witnesses to oath/affirmation at probate or get two people who can testify to signature of T |
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In 2005 T properly executed a will in duplicate giving all property to her children (T & witnesses signed 2 copies). In 2007 she wrote 'VOID' on one of the copies of the will and drew many vertical lines across front of the one-page document. Will revoked?
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Yes, it is revoked by physical act.
An act of revocation on one executed copy revokes all executed copies. Just drawing the lines would have been sufficient. |
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Revocation by phsyical act?
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Requires:
1. intent to revoke 2. physical act: PA statute refers to "burnt, torn, canceled, obliterated, or destroyed." The phsyical act must touch some of the language of the will itsef. "Void" written on the back of the will or "void" written across the front of a photocopy of a will is insufficient. |
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Will in T's possession from time of execution until death and found in mutilated condition after T's death?
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Presumption: T did mutilating with intent to revoke.
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Will last seen in T's possession and control....is not found after T's death.
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Presumption: The reason it can't be found is that T destroyed with intent to revoke.
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T calls his attorney, the place where the will is located, and orders his attorney to destroy T's will. The order is never carried out. Is the will revoked?
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No. NEED INTENT + ACT.
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T calls his attorney, the place where the will is located, and orders his attorney to destroy T's will. Attorney destroys the will pursuant to T's order. Is will effectively revoked?
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No. Revocation by another person must be:
1. At T's direction AND 2. In T's presence AND 3. T's direction must be in front of 2 witnesses. |
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Requirements for revocation by another person?
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Revocation by another person must be:
1. At T's direction AND 2. In T's presence AND 3. T's direction must be in front of 2 witnesses. |
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If will not revoked, but was destroyed, how could it be probated?
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Must meet the "LOST WILLS REQUIREMENTS." Proponents have burden of proving the contents of the lost will by "CLEAR AND CONVINCING PROOF"
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What do you call and amendment to a will?
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A codicil.
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T's 2001 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T's 2004 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?
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Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But ot the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
M gets the diamond ring. Y does not get ring, does get $5,000 X takes Blackacre (nothing inconsistent between documents) Z takes residue (but gets residue after the codicil, not based on original will alone) |
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Will + later codicil that does not revoke will?
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Later document controls to the extent of any inconcistent provisions. The inconsistent provisions of the original will are revoked.
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Will vs. later will that does not in terms revoke the first will?
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1. If the second will has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only to the extent of the inconsistency.
2. If the second will has a residuary clause, it revokes the 1st will in its entirety. 3. Revocation of a will revokes all codicils thereto. But revocation of a codicil to a will does not revoke the will. |
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Effect of revocation on a will upon its codicils?
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Revocation of a will revokes all codicils thereto. But revocation of a codicil to a will does not revoke the will.
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Effect of a revocation of a codicil on the will?
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Revocation of a codicil to a will does not revoke the will. But, revocation of a will revokes all codicils thereto.
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T's will devises entire estate 'to my wife, Sheila if she survives me; if she does not survive me, in trust for my children.' The will names Sheila as executor "if she is able"; otherwise X is to serve as executor. 2 years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by 2 children and by X. Who takes what? Who serves as executor?
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Rule: Unless the will shows it was intended to survive the divorce, the divorce revokes all provisions in favor of ex-spouse. Construe the will as if ex-spouse were dead.
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What if T and Sheila marry again after divorcing?
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A remarraige reinstates the provisions in favor of the ex-spouse in the will. Do not treat the ex-spouse as dead.
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Effect of divorce on ex-spouse's benefit from an inter vivos trust?
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Ex-spouse is written out of the trust.
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Effect of divorce on life insurance policy?
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Ex-spouse no longer receives benefit if the policy was taken out AFTER 1992.
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Effect of a separation?
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A mere separation has no effect - it is not treated as a divorce.
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What is an interliniation?
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A new gift.
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T's typewritten will made a bequest of "$10,000 to my friend X." Subsequent to the will's execution, T drew a line through the figure $10,000 and wrote in above it $15,000.
Has the $10,000 bequest to X been revoked? Can the interliniation be given effect? |
Has the $10,000 bequest to X been revoked?
Yes, by physical act. Can the interliniation be given effect? NO, UNLESS: 1. after the defendant T re-executed the will OR 2. re-publishes the will by codicile (write out intent on separate piece of paper and execute that) |
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T's typewritten will made a bequest of "$10,000 to my friend X." Subsequent to the will's execution, T drew a line through the figure $10,000 and wrote in above it $15,000.
Should Dependent Relative Revocation [DRR] be applied to reinstate the original $10,000 bequest? |
Cancellation of the $10,000 is because it was based on mistake of law.
1. Disregard a revocation (the cancellation of the $10,000 bequest). 2. Because it was based on a mistake of law (that the interliniation would be effective). 3. Provided the court thinks T would not have revoked the $10,000 bequest but for the mistake. |
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What is the Dependent Relative Revocation [DRR] Doctrine?
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DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T would never have made the revocation.
1. Disregard a revocation (the cancellation of the $10,000 bequest). 2. Because it was based on a mistake of law (that the interliniation would be effective). 3. Provided the court thinks T would not have revoked the $10,000 bequest but for the mistake. DRR never gives the desired result but gives the next best thing... |
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T executes WILL-1 which devises his residuary estate "in trust to pay the income to my grandson G until he attains the age of 30, at which time to distribute the principal to G." In 2004, T executes a new will, WILL-2 "hereby revoking all wills heretofore made by me." WILL-2 devises his residuary estate to G outright. T does not destroy WILL-1. Later, T has yet another change of heart. "You know, I think the property should be held in trust for G after all." With this he destroys WILL-2 with the intent of reviving WILL-1. T dies. He is survived by G and his daughter whom he detests. Who takes what?
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Has WILL-1 been revoked? Yes, in the execution of WILL-2. As a normal matter, the will has no effect until it goes into probate EXCEPT the revocation was effective immediately.
Has WILL-2 been revoked? Yes, when it was destroyed. REVIVAL: Did revocation of WILL-2 "revive" WILL-1? No. Once WILL-1 is revoked, it only comes back if re-executed or executed by codacile. Can WILL-2 be revived because of mistake? (Use but for test and consider effect either way...) WILL-2 comes back under DRR. |
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How to incorporate an extrinsic document by reference?
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1. Writing must be in existence at the time will was executed.
2. Will must manifest and intent to incorporate the document. 3. Will must describe the writing sufficiently to permit its identification. |
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What is the Doctrine of Independent Significance?
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Acts having an independent lifetime motive may impact on the will as well.
As long as we can find any lifetime motive, then we allow the change it effects on the will. |
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"I devise my automobile that I own at my death to my nephew, Ned."
Three months later T trades his Ford in for a more valuable Mercedes. What is the effect on T's will? |
Doctrine of Independent Significance:
Can we identify any lifetime motive? (Probably yes, wanted a bigger car maybe?) If yes, then allow the change it effect on the will. (Ned gets Mercedes instead of Ford) |
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When a beneficiary names in the will dies before the testator, the gift ______ ?
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Lapses.
UNLESS it is saved by the state's ANTI-LAPSE STATUTE. |
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PA Anti-Lapse Statute?
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Statute applies when the predeceasing beneficiary is T's
SIBLING, DESCENDANT (child, grandchild), or CHILD OF SIBLING who LEAVES ISSUE who SURVIVE T If the lapse statute applies, then the issue of the deceased beneficiary take in the beneficiary's place. |
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What if a devisee who qualifies under the lapse statute leaves a will devising all property to non issue?
X's will leaves $500 to his sister, Paula. Paula's will leaves all to Husband. Paula dies, leaving Husband and 2 kids. Then X dies. Who gets $500? |
The kids.
The lapse statute will only give the gift to the issue. |
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Exception to the lapse statute?
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1. if the residuary beneficiaries are children or spouse of testator
2. then anti-lapse statute won't save a gift to testator's sibling or child or sibling. |
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Class gift rule and the Anti-Lapse Statute?
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Where the gift by will to a group of persons generically described as a class ("children of" "nephews" etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
However, if the gift is to a class of persons covered by the anti-lapse statute, then it does apply. |
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T leaves "to the children of my sister"
Sister has three children, then one child of sister dies, leaving issue. Then T dies. |
Sister's 2 children + issue of dead child receive the gift. (anti-lapse statute applies)
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T leaves "to the children of my friend"
Friend has three children, then one child of friend dies, leaving issue. Then T dies. |
Gift only goes to the 2 children of friend - anti-lapse statute does not apply.
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PA rule where residuary estate is divised to 2 or more people and one predeceases testator?
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PA (majority) rule:
If the residuary estate is divised to two or more persons, and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. |
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PA rule where residuary estate is divised to 2 or more people and one predeceases testator
and the one who predeceases testator falls under the anti-lapse statute? |
Apply the anti-lapse statute. If they have issue, the issue receives their portion of the residue.
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What is a devise?
What is a bequest? |
Divise - gift of land / real property
Bequest - gift of chattel / personal property / money (money gift also called a legacy) |
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Types of gifts?
What order are gifts sacrificed in to satisfy funeral expenses, expenses of administration, creditors' claims? |
This is called Abatement. (Reverse order - 1 abates last, 5 abates first)
1. Specific Devise or Bequest (Note: specific gifts to descendent's spouse and kids abate absolutely last) 2. Demonstrative Legacy 3. General Legacy 4. Residuary Bequest 5. Intestate Property |
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Specific Devise or Bequest (Specific Gifts)?
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A specifically identifiable asset at the time of death.
Examples: I devise Blackacre to X. I bequest my car to X (if T only had one car). I bequest all my bank accounts to X. |
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Demonstrative Legacy?
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A general legacy w/ funding instructions.
Example: "$5,000, to be paid out of the proceeds of sale of my Acme stock, to X." |
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General Legacy?
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Gift of a pecuniary amount.
Example: "$5,000 to X." |
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Residuary Bequest?
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"I give all the rest, residue, and remainder of my property to X."
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Intestate Property?
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When there is a partial intestacy for some reason.
For example: All the residuary beneficiaries predecease T and the case is not covered by the anti-lapse statute. |
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"I devise Blackacre to my son John."
T sells Blackacre. T dies. What result? |
John's gift is ADEEMED - the beneficiary takes nothing.
Ademption applies to Specific Gifts only. |
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"I give $500, to be paid out of the proceeds of the sale of my Acme stock, to Mary."
T sells Acme stock. T dies. What result? |
Ademption doesn't apply to demonstrative gifts.
The ademption doctrine is limited to specific gifts. |
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Common Law Ademption v. PA Rule Re: T's incompetency?
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At common law, ademption would apply to any case where the property specifically devised was not in the estate for any reason. At common law, T's intent was immaterial.
In Pa, intent is still immaterial, but generally there will not be ademption if T was incompetent at the time the action that caused the ademption occurred: Will executed before T declared incompetent: If specifically devised property is sol by conservator, or if condemnation award or insurance proceeds relating to the proprerty are paid to the conservator, the specific devises has a right to a general legacy equal to the net sales price, condemnation award, or insurance proceeds unless testator's disability has been adjudicated to have ceased and testator survives the adjudication by one year. |
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PA Ademption rule Re: specific devisee and T is competent?
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Where T is competent, PA statute provides that a specific devisee has the right to the remaining specifically devised property and:
a) any balance of purchase price owing from purchaser at T's death b) any amount of condemnation award for the taking of property unpaid at T's death c) any amount of fire or casualty insurance unpaid at T's death |
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I bequeath my 100 shares of A stock to Simon.
T owned 100 shares of A stock when he executed the will, the received 100 more shares distributed by the corporation after the will was executed. T dies. What does Simon take? |
All 200 shares (regardless of whether its a dividend or a split)
Also entitled to securities of another entity owned by T as a result of merger, consolidation, etc. (doesn't apply to purchase options exercised) |
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I bequeath my 100 shares of A stock to Mary.
I bequeath 200 shares of B stock to John. T then sells all of her A and B stock. T dies. Result for A and B? |
A's gift is specific ("MY") so A is adeemed.
B's gift not specific - any 200 shares of B stock okay. This is a general or demonstrative gift. No adeemed. Executor of estate will purchase the shares for B. |
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Is a specific devisee of encumbered property entitled to have the encumbrance paid out of the residuary estate?
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No, unless the will shows such intent for that specific gift.
(a general direction in the will to pay debts is not sufficient) |
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What is a latent ambiguity? Effect on gift?
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A problem that appears when executing the will - can't tell who the gift is to for example.
Extrinsic evidence is admissible. In the absence of clarifying evidence the gift fails. |
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What if it looks like there is a mistake in the language of the will?
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Cannot use extrinsic evidence to disturb the plain meaning of the will, no matter what.
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PA Intestacy Rules:
Descendent survived by spouse... 1. but no issue or parent? 2. and parent but no issue? 3. and issue if all issue are also issue of the surviving spouse? 4. and issue if one or more issue are not issue of the surviving spouse? |
1. spouse gets everything
2. spouse takes first $30k + half 3. spouse takes first $30k + half 4. spouse gets half |
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PA Intestacy Rules:
Share not going to spouse or all of estate if no spouse survives... If there is issue? If there are parents? If there are no issue or parents? |
1. all to issue, if any
2. if no issue, to parent(s) 3. if no issue or parents, to parents' issue |
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PA Intestacy Rules: How to divide among issue?
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Issue takes per capita if all are of same degree of relationship to descedent. Otherwise they take by representation (issue of issue).
Divide equally among issue. If any issue are deceased, but left issue than dead issue's share is divided among them. Applies to descedent's issue, decedent's parents, or others... |
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Gift in will or trust to my descendants "by right of representation" / "per stirpes"?
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Again, per capita is all are of same degree of relationship; otherwise take by representation.
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PA Intestacy Rules:
Frank gets Maude pregnant. Child Cliff is born. Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff. a) If Maude dies intestate, can Cliff inherit from Maude? b) If Frank dies intestate, can Cliff inherit from Frank? c) If Steve dies intestate, can Cliff inherit from Steve? d) If Steve did adopt Cliff, can Cliff inherit from Maude? Steve? Frank? |
a) Yes
b) No, unless there was: 1. a marriage to Maude 2. Frank holds Cliff out as his and either receives him into his home or provides him with support (acknowledges him) 3. clear and convincing evidence of paternity c) no. d) yes from Maude and Steve; gives up rights to inherit from Frank |
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PA Intestacy Rules:
Frank gets Maude pregnant. Child Cliff is born and is placed out for adoption. Cliff is adopted by the Andersons. a) If either Anderson dies, can Cliff inherit from them? b) If Cliff dies intestate, can Andersons inherit from him? c) If Maude dies intestate can Cliff inherit from her? d) If relative of Maude dies intestate, can Cliff inherit from them? |
a) yes
b) yes c) no d) only if that other relative maintains a continuing family relationship with Cliff (facts and circumstances analysis |
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Simultaneous Death Act?
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Enacted in most states.
When two people essentially die simultaneously, absent a will provision to the contrary, the property of each passes as though he survived: Wills: As though T survived; as though beneficiary predeceased. Potential lapse situation. Insurance: as though the insured survived; as though beneficiary predeceased. Joint Tenancy w/ right of survivorship: 1/2 as though tenant A survived; 1/2 as though tenant B survived. Simultaneous death prevents operation of the right of survivorship so 1/2 passes through each tenant's estate. |
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How long to do you have to live to outlive another?
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120 hours (5 days)
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Rancher and wife involved in accident. Rancher killed instantly. Wife survived for 3 days then died. Rancher died intestate. Wife an heir for purposes of intestate distribution?
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No - simultaneous death (she only made it 3 days, not 5. She is treated as predeceased.
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H gives daughter A land worth $12 for her birthday. H tells other two kids they will receive similar gifts for their 25th birthday. H dies before other gifts are made. Dies intestate with estate worth $78. Will the gift to A affect how H's estate should be distributed?
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DOCTRINE OF ADVANCEMENT:
Common Law: Yes. Lifetime gift to child or descendants presumed to be an advancement of his intestate share to be taken into account in distribution of the intestate's estate. PA Law: No. No gift is an advancement unless: (i) declares in a contemporaneous writing by the decedent or (ii) acknowledged as such in writing by the heir |
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Doctrine of Satisfaction?
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In PA, applies to testate estates.
A lifetime gift will be treated as having been made in prepayment of a beneficiary's interest under a will if the donor's acts and declarations show that that was the donor's intent. |
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Rights of surviving spouse: Was the will written before marriage? What is the effect of marriage following execution of will ("pretermitted spouse")?
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If will was executed before the marriage, the pretermitted spouse gets a right to an intestate share (which is always at least 1/2 of estate).
UNLESS: 1. the will gives the spouse a greater share (like it was a gift to a boyfriend who later became a spouse) 2. It appears from the will that it was executed in contemplation of marriage. |
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Elective Share?
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Common law dower and curtesy are abolished in PA and replaced w/ a statutory election share.
The elective share is 1/3 of the "Elective Estate." On spouse's death, surviving spouse may choose to receive the elective share. If so, surviving spouse waives right to all other interests in dead spouse's property. If surviving spouse doesn't choose the elective share, then surviving spouse gets all the stuff they would normally be entitled to under the will, insurance proceeds, etc. Alternative: Spouse takes the elective share, but calculates it by receiving the property she would inherit and deducting it from the elective share. |
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What is the elective share?
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Net testamentary estate (over and above funeral expenses, expenses of administration and allowable creditor's claims).
PLUS 3 types of lifetime donative transfers: 1. REVOCABLE TRUSTS, other transfers with retained power to revoke, invade, etc. for own benefit 2. decedent's undivided interest in property acquired during the marriage in right of survivorship form (JOINT BANK ACCOUNTS, etc.) 3. transfers in excess of $3,000 made by the decedent w/in a year of death ($2,000 of a $5,000 gift would be included) |
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Can the right to an elective share be waived?
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yes, in writing after fair disclosure
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What is a pretermitted child?
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A child born or adopted after the will was executed. Pretermitted children are entitled to an intestate share. UNLESS it appears the omission was intentional.
HOWEVER, in PA you can't fund a pretermitted share w/ property that would otherwise go to the spouse. |
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Will executed
Pretermitted child born Codicile to will executed - doesn't mention pretermitted child. T dies. What does pretermitted child get? |
Nothing. Doctrine of Republication by Codicil. Omission of child is intentional.
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Doctrine of Republication by Codicil?
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A will is redated to the date of a later executed codicil.
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Effect of intentional killing on the party sharing in the estate?
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A person who feloniously and intentionally kills the decedent is not entitled to any benefit from the decedent's estate by will, intestacy, under elective share, life insurance contract or otherwise.
Property passes as if killer was predeceased. Jointly held property with right of survivorship passes half to victim's estate and half to killer for life with remainder to victim's estate. Unintentional killings like negligent vehicular homicide don't trigger rule. Civil standard applies: preponderance of evidence (not criminal beyond a reasonable doubt standard). |
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Effect of desertion on intentional killing?
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Inheritance and elective share rights of a husband or wife are forfeited if the husband or wife willfully and maliciously deserts or otherwise fails to support his or her spouse for a year or more.
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Will contracts?
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In PA a k to make will, not to revoke will or to die intestate, can only be shown if:
1. the terms are in the will itself 2. the terms are set out in a separate writing 3. or the will refers to the k and extrinsic evidences proves its terms Additionally, the mere existence of mutual wills does not imply a k not to revoke them (like husband/wife). |
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When is a will effective?
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when it is admitted to probate.
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Appointment of Personal Representative?
Executor v. Administrator? |
Personal Representative will be appointed to manage the estate during administration. PR is issued letters as evidence of his authority to administer the estate. PR nominated under the decedent's is called an executor and receives "letters of testementary." A PR of an intestate decedent is called an administrator and receives "letters of administration."
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Who is eligible to be a personal representative?
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PA banks and trust companies.
People 18 or older who have not been charged w/ voluntary manslaughter or homicide in connection w/ decedent's death. Nonresidents may serve only if they are nominated in the decedent's will. |
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Priority of who gets to be Personal Representative?
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1. If a will, the person nominated in the will.
2. then to those entitled to the residue of the decedent's estate 3. then to heirs 4. then to creditors in each category, priority goes to the person entitled to the greatest share of the estate |
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Bond requirement for Personal Representative?
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Unless waived in the decedent's will or excused by the court, a PR (other than a bank or trust co.) must normally post a bond.
Not required if the person is a PA resident and is either a sole residuary beneficiary under decedent's will or the decedent's sole heir at law. |
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Duties of Personal Representative?
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Collect the decedent's assets, pay off any creditors and distribute the balance to those entitled to it.
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Publication of Grant of Letters?
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Immediately after receiving them, the PR must publish notice of the grant of letters in one legal journal and one newspaper of general circulation in the county in which the estate is administered / where T died.
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Inventory Requirement?
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The PR must normally file an inventory of all assets of the estate. Must include the value of all property wherever located and all PA real property.
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Powers of Personal Representatives?
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General Rule: a PR has all powers necessary to the proper administration of the estate and may act w/out court authority in the exercise of those powers.
Exception: Unless otherwise provided in the will, court approval is necessary to sell specifically devised real property or to continue the operation of the decedent's unincorporated business. |
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Creditor's Claims - Order of Payment?
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1. Expenses of the administrator
2. Family exemption 3. Funeral expenses and medical related expenses incurred w/in 6 months of death 4. Cost of a gravemarker 5. decedent's rent for the 6 months before death 6. all other claims |
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Duty to Account?
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PR must file an accounting at the end of administration along with a statement of the proposed distribution of the decedent's estate. Nor formal proceeding to approve the accounting and distribution is required if the estate does not exceed $25K.
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Who has standing to contest a will?
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Any person whose share of the estate would increase if the will were invalid. However, it is the PR's responsibility to defend the will. Thus, PR must resign the position if she chooses to join in the contest.
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Will contests: lack of testamentary capacity.
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Burden of proof on contestants.
The test: 1. Did T understand the nature of the act he was doing? 2. ...know the nature and character of his property? 3. ...know the natural objects of his bounty? 4. ...understand the disposition he wished to make? If answer to any is no, then T lacked capacity. Evidence of T's capacity or lack of it must relate to the circumstances at the time the will was executed, or shortly before or shortly thereafter. |
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Effect of incompetency adjudication and guardian on will contest?
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If T had been adjudicated incompetent and a guardian appointed, this is evidence of lack of capacity but it does not raise a conclusive presumption (will not support a directed verdict).
Why? 1. the test for whether a guardian should be appointed is different from the 4 point lack of testamentary capacity test. 2. even if T had a mental problem, the jury could find T wrote the will during a "lucid" interval |
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Will contests: insane delusion?
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A distinctive form of testamentary incapacity - where T is otherwise sane, but the will (or a gift in it) is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will (or gift) is the product of the insane delusion. There must be a causal connection.
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Will contests: undue influence?
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Burden of proof is on contestants, who must show:
1. existence and exertion of the influence AND 2. effect is to overpower the mind and will of the testator AND 3. the result is a will that would not have been executed but for the influence. |
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Will contests: undue influence evidence?
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Usually circumstantial.
These alone are not enough: 1. mere opportunity to exert influence 2. mere susceptibility to influence due to illness, age. Such evidence does not by itself establish that T's mind was in fact subverted and overpowered. 3. mere fact of 'unnatural disposition' - that some children take less than others or are excluded entirely. It is only where all reasonable explanation for the devise is lacking that the trier of fact may take this circumstance as a badge of undue influence. Undue influence may be shown as to the entire will, or as to one gift in the will. |
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When will a presumption of undue influence arise?
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In most states, a presumption of undue influence arises upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney-client, priest-parishioner, doctor-patient) draws or procures the execution of the will.
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Effect of a no contest (in terrorem) clause?
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"any person who contests this will shall forfeit his legacy"
If person contests and wins, the will is invalid. If person contests and loses, the clause will not be enforced against him if he had probable cause. |
