Wills, Trust And Estates - Defenses

Front 1

(MENTAL CAPACITY) To be competent to make a will, the testator must be an adult (age 18 or older) and must be capable of knowing and understanding in a general way?

Back 1

(1) the nature and extent of his or her property,

(2) the natural objects of his or her bounty,

(3) the disposition that he or she is making of that property, and

(4) relating these elements to one another and forming an orderly desire regarding the disposition of the property

Front 2

(MENTAL CAPACITY) If your client is declared mentally incompetent, can s/he create a will?

Back 2

S/he can still make a will if he has a lucid moment (probably proved by clear and convincing evidence). (It is unethical for an attorney to draft a will for someone who is mentally incompetent, but he/she may rely on his/her own judgment in making that determination)

Front 3

(MENTAL CAPACITY) In re Estate of Wright Case Rule on Mental Capacity?

Back 3

1. The testator is presumed to have mental capacity to make a will, especially after attestation by witnesses

2. The people who attack the will have the burden of proof to show that the testator did not have mental capacity

Front 4

Why Mental Capacity?

Back 4

i. Want only to give effect to testator’s true desires

ii. Testator’s without mental capacity are not treated like normal persons

iii. Mental capacity protects testator’s family

iv. Mental capacity assures rational dispositions which benefit society

v. Mental capacity protects the mentally infirm from exploitation

Front 5

(MENTAL CAPACITY) How the first three elements of capacity relate to each other to form an orderly plan of disposition?

Back 5

Minimum competence (One can be judicially declared incompetent and still have testamentary capacity)

Front 6

(MENTAL CAPACITY) Insane Delusion?

Back 6

An insane delusion is “one to which the testator adheres against all evidence and reason to the contrary.”
(A delusion is insane, even if there is some factual basis for it, if a rational person in the testator’s position could not have drawn the conclusion reached by the testator)

Front 7

(MENTAL CAPACITY) The insane delusion is irrelevant unless it is shown that the belief caused what?

Back 7

the testator to dispose of his property in a way that he would not otherwise have done

Front 8

(MENTAL CAPACITY) Part or all of the will can be stricken if the insane delusion caused what?

Back 8

some kind of defect in the will

Front 9

Defenses?

Back 9

1. Capacity
1-a. Mental
2. Undue Influence
2-a. Coercion
3. Fraud
4. Duress

Front 10

UNDUE INFLUENCE: REQUIRED ELEMENTS AND BURDEN OF PROOF?

Back 10

a. Testator SUSCEPTIBLE to undue influence

b. Alleged influencer had OPPURTUNITY to unduly influence the testator

c. Alleged influencer was disposed to influence testator to obtain improper favor (MOTIVE)

d. Will evidences a RESULT that is likely to effect of undue influence

(Contestant has the burden off proof)

(Note: Most states say need something besides circumstances
1. secrecy and haste in forming will
2. independent legal advice
3. sudden departure from long-term estate planning)

Front 11

Restatement (Third) § 8.3 (b); what is undue influence?

Back 11

(b) Undue influence if wrongdoer exerted such influence over donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.

Front 12

Restatement (Third) § 8.3 (a) general rule on undue influence, fraud and Duress?

Back 12

(a) will invalid to extent that transfer was procured by undue influence, duress or fraud.

Front 13

Restatement (Third) § 8.3, Comment H Undue Influence, suspicious circumstances element test?

Back 13

(presumption of undue influence if confidential relationship and suspicious circumstances surrounding preparation, execution or formulation of donative transfer) and test is:

1. weakened condition
2. wrongdoer participated in preparation or procurement of the will (some states require procurement)
3. whether donor received independent advice from attorney
4. whether will was prepared in secrecy or haste
5. attitude toward other hand changed by reason of relationship
6. discrepancy between new and previous wills

Front 14

What is Coercion?

Back 14

1

Front 15

Lakatosh TEST to raise a presumption of undue influence?

Back 15

1. Confidential relationship à almost a fiduciary concept; she

2. Person enjoying the relationship received the bulk of the estate

3. Weakened intellect à elderly women, helpless to protect herself

Front 16

What is a "No contest" clause?

Back 16

anybody who contests the will loses their benefits.

(a. If you win a contest, clause has no effect, but loser doesn’t get anything

b. Need to “bait the trap” à leave alternative amount. Lipper no contest clause was worthless because no risk to contestants

c. Effects.

i. Positive side: help us block meritorious claims

ii. Negative side: discourages meritorious contests

iii. Some states enforce strongly, others don’t

iv. Probably Cause Compromise à don’t enforce no contest clause if there is probably cause for contest

d. Russell à Senator, US judge, etc. has 3 kids. One kid loses contest against the trust. children bring suit to enforce the no contest clause)

Front 17

Ways to anticipate a contest?

Back 17

i. letter by testator’s hand

ii. stenographer

iii. write a memo to the file (she was alert, lucid, etc.)

iv. video à could be bad if she looked bad

v. Bate the trap!

vi. have psychiatrist declare you competent (risk of bad evaluation)

Front 18

2 kinds of Fraud?

Back 18

1. Fraud in the inducement
2. Fraud in the execution

Front 19

Fraud in the execution?

Back 19

Instrument says something different than the testator thinks it does. E.g., tell someone will leaves things to kids when it leaves them to lawyer’s family

Front 20

Fraud in the inducement?

Back 20

Induce testator to sign instrument by giving false information about the circumstances (e.g., tell testator family is dead); cured through constructive trust