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22 Cards in this Set
- Front
- Back
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what elements must the testator satisfy to have capacity to make a will?
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1. at least 18 yrs
2. able to understand extent of property 3. know the natural objects of her bounty (takers under intestate succession) 4. nature of her act (that she is making a will) |
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is the mere diagnosis of a mental deficiency sufficient to remove the capacity to make a will?
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no, but it can be used to show testator lacked the knowledge or understanding requirements of capacity
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when does a testator have an insane delusion?
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at the time of execution:
1. had a false belief 2. that was the product of a sick mind 3. no evidence to support belief 4. delusion effected the will |
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what are the consequences of finding that the testator had an insane delusion/
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only the part of the will effected by the delusion is invalidated. rest goes to residuary devisee or through intestate.
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what are the elements of fraud in wills?
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1. a representation
2. of material fact 3. known to be false by the wrongdoer 4. for the purpose of inducing action or inaction 5. and in facts induces the action or inaction desired. |
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what is fraud in the execution of a will and its consequences?
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signature on the will is forged or obtained through trickery (eg substitution of paper). the entire will is invalid.
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what is fraud in the inducement of a will and its consequences?
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a wrongdoer's representation effects the contents of the will (tells a lie about something). only the part of the will effected by the fraud is invalid.
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what result when a will is found partially invalid due to fraud in the inducement?
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the invalid portion goes to residual devisees or heirs under intestate succession. where this will result in unjust enrichment the devisees or heirs are then designated as constructive trustees whose duty is to transfer property to the intended beneficiary
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what is a constructive trustee
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one who is appointed by the court when a will is found partially invlaid in order to trasnfer property to an intended beneficiary
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what is fraud in preventing testator from revoking and what is its result?
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wrongdoer's mispresentation causes testator not to revoke a will. the will is not entered into probate estate goes to heirs. heirs are appointed constructive trustees.
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what is the definition of undue influence?
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T's free agency is subjagated.
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what are the 3 forms of establishing undue influence?
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1. prima facie case
2. presumption 3. statutory |
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what are the elements for a prima facie case of undue influence?
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1. suseptibility
2. opportunity (access) 3. active participation (wrongful act) 4. unnatural result (wrongful actor gets devise they would not normally) |
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what are the elements of a presumptive undue influence?
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1. confidential relationship
2. active participation (wrongful act) 3. unnatural result |
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what result from finding undue influcence due to prima facie, presumption, and statutory?
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prima facie and presumptive = part of will effected invalid (goes to residuaries, heirs, or constructive trust for unjust enrichment)
statutory = no gift beyond that allowed by intestate succession, rest to residuaries then heirs |
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statutory undue influence invalidates transfers to who?
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1. the person who drafted it
2. a family member or employee of the drafter 3. a person in a fiduciary relationship w/ T and who causes the will to be transcribed 4. the care custodian or a dependent adult who is the transferor |
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what exceptions exist to the classes of statutory undue influence?
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1. T is married to or lives w/ the draftor;
2. reviewed by an independent atty; OR 3. court determines on clear and convincing evidence that there was no wrongdoing (except where devisee is the draftor) |
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what is a mistake in content?
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the wrong beneficiary is named or wrong gift made
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what result for a mistake in addition? in omission?
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court will remove mistakes (strike), but not add to the will
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what is a mistake in execution? what result?
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T signs the wrong document. will not entered into probate because not intended as will (exception for spousal mutual or reciprocal wills)
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what is a mistake in inducement? what result? what exception?
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gift is made based on T's mistaken belief. generally no relief, unless mistake and action but for the mistake appear on the face of the will
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what is a mistake in description? what result?
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Either no one or nothing fits the description or more than one thing or person does so. Parol evidence used to determine intent.
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