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137 Cards in this Set
- Front
- Back
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Role of Probate Ct
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(1) Judicially determines whether a decedent left a valid will or died intestate.
(2) Appoints a Personal Representative (Executor = if named in will; Administrator = if appointed by the ct) who will administer the decedent's estate (3) Issues Letters Testamentary (if executor) or Letters of Administration (if administrator), which allow the Personal Representative authority to represent the estate in all subsequent estate transactions |
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Duties of Personal Representative
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(1) take possession and control of estate's assets
(2) give creditors notice and pay creditors claims (3) pay relevant estate taxes (4) disburse the estate to beneficiaries and heirs |
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Personal Representative qualifications
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Must NOT be:
(1) < 18 yo (2) Incapacitated (other than physical frailty) (3) a Felon (4) a resident corp not authorized to act as a fiduciary in IN (5) otherwise found unsuitable |
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What does the Probate Estate NOT include?
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Non-Probate Transfers, which are interests that pass automatically by:
(1) Rights of Survivorship (joint and survivor bank accts) (2) Terms of K (life insurance proceeds; employee death benefits) (3) Intervivos Trust |
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Heirs
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Persons who take under the intestacy statutes.
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"Other Heirs"
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Relations other than spouse must be related by BLOOD or ADOPTION, not simply by marriage.
NOT: -in-laws -step relations |
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Descendants/Issue
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Decedent's lineal heirs:
-children -grandchildren NOT decedent's collateral heirs: -siblings -aunts & uncles -cousins |
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Application of intestate succession
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RULE: IN's intestate statutes apply to distribute assets when a decedent:
(1) dies without having made a will (2) has made an invalid will (3) has made a valid will but some property is not properly disposed of pursuant to such will (4) has a valid will which specifies that the intestate statutes should apply (5) Leaves a pretermitted child who is entitled to take pursuant to the intestate statutes |
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Spouse and Descendants survive
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Spouse: 1/2 of the net estate (EXCEPTION: Subsequent Childless Spouse)
Descendants: divide the remainder amongst the issue per capita with representation |
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Per capita with representation
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Divide first "per capita" (equally) at the first generational level where there are living takers, and then "with representation" (giving one share for each family line)
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Subsequent Childless Spouse
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If the surviving spouse is a subsequent childless spouse who has no children with the decedent AND there are surviving issue from another, the subsequent spouse shall take:
REAL PROPERTY: only 1/4 of FMV, less any liens and encumbrances (remainder to issue) PERSONAL PROPERTY: 1/2 |
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Spouse and Parents but no descendants survive
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SPOUSE: 3/4 of net estate
PARENTS: share remaining 1/4 (1/8 each if both survive) |
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Spouse, but no descendants and no parents survive
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Spouse takes entire net estate
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Fault-based disqualifications of surviving spouse
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Disqualified from intestate share she is deemed to:
(1) be living in adultery at time of decedent's death (2) OR have abandoned the decedent without just cause |
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No spouse, but issue survive
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Divide the entire estate per capita with representation
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No spouse or descendants survive
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PARENTS & SIBLINGS: share equally
NIECES/NEPHEWS: take with representation *PARENTS each get 1/4 |
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Only nieces/nephews and/or their descendants survive
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Take equally if of the same degree of kinship, otherwise by representation.
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Grandparents, but NO spouse, descendants, parents, siblings, or issue of siblings
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Grandparents share equally
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Aunts/Uncles & their issue, but NO spouse, descendants, parents, siblings, issue of siblings, or grandparents
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Share equally per capita with representation, BUT if only the issue of deceased aunts/uncles survive, they divide only their parent's potential share (PER STIRPES)
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In not survived by parent, grandparent, or grandparents' issue
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The estate escheats to the state of IN
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Significance of parent-child relationship
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Once a parent-child relationship is recognized, a potential heir can be recognized in the parent, child, or "from and through" the parent-child relationship
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Non-marital child and M
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If a child is born out-of-wedlock, a parent-child relationship exists btwn the natural M and child in ALL cases.
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Non-marital child and F
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If a child is born out-of-wedlock, a parent-child relationship exists btwn the natural F and child when:
(1) F marries M AND acknowledges child as his own (2) F signs a paternity affidavit (3) For a child > 20yo, paternity is established by a COA filed during the F's lifetime (4) For a child < 20yo, paternity is established by a COA filed during R's lifetime OR within 5m of the F's death (5) For a child born after F's death, paternity is established by a COA filed within 11m of F's death |
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Adoption by "Stranger"
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RULE: Adoption neither by family or a stepparent severs all inheritance claims "from and through" the bio parent-child relationship.
EXCEPTION: bio parent/spouse of adopting stepparent |
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Adoption by other family members
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RULE: if a relative related within 6 degrees adopts a child, the child may inherit through EITHER the bio parents or through the adoptive parents WHICHEVER IS GREATER.
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Posthumous Child
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RULE: DESCENDANTS of a decedent conceived during the decedent's lifetime qualify as heirs. Otherwise, a person must be alive PRIOR TO decedent's death.
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Half-blood Kindred
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Treated the same as whole-blood kindred
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Waiver of Intestate Share
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By a signed writing which meets certain disclosure and consideration standards.
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Simultaneous Death
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RULE: IN follows the Uniform Simultaneous Death Act (USDA).
RULE: when title to property depends on priority of death, and there is insufficient evidence that the persons have died other than simultaneously, the property of each person passes as though that person survived, absent a contrary provision in a valid written instrument. APPLICATION: distribution of property by ANY MEANS |
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Disclaimers
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RULE: any heir, beneficiary, or recipient of non-probate transfer may disclaim his interest.
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Rational for Disclaimers
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To avoid creditors
Tax purposes |
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Requirements for Disclaimer
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In order to effectively disclaim, a disclaimer:
(1) must be accomplished BEFORE THE ACCEPTANCE OF PROPERTY (2) must be accomplished IN WRITING OR OTHER RECORD (3) Must be DELIVERED to the relevant person obligated to distribute the interest (PR, Trustee, Fiduciary) (4) must be made within 9m of decedent's death to qualify for fed gift tax purposes OR at any time to qualify for state tax purposes (5) may be made to ANY interest, IN WHOLE OR IN PART (6) AND must be made by an incapacitated person's guardian, provided it is in such person's best interest |
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Effect of Disclaimer
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(1) Predecease (property passes as if disclaimant predeceased the decedent)
AND (2) Acceleration of Future Interest. |
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Decedent's death caused by heir or beneficiary
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RULE: any heir or beneficiary who has been found GUILTY OR GUILTY BUT MENTALLY ILL of the murder, voluntary manslaughter, or causing the suicide of the decedent is disqualified from taking what he would have received upon decedent's death.
EXCEPTION: NOT GUILTY BY REASON OF INSANITY - a civil action may be initiated to prove the individual killed or caused the suicide of the decedent. BOP is preponderance of the evidence. |
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Decedent's death caused by heir or beneficiary - property covered
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Includes:
(1) via intestacy (2) will distribution (3) trust (4) elective share (5) family allowance (6) life insurance |
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Decedent's death caused by heir or beneficiary - Rationale
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A killer should not benefit from his misdeed.
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Decedent's death caused by heir or beneficiary - Effect
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The disqualified killer holds the property as a CONSTRUCTIVE TRUST.
Constructive trust: holds the property for the benefit of others who would have taken had KILLER PREDECEASED DECEDENT. |
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Advancements
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RULE: an advancement is a distribution made by an INTESTATE during his life to an HEIR which can be deducted from the heir's intestate share.
BUT: PRESUMPTION OF GIFT |
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Advancement v. Gift
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RULE: In IN, there is a presumption of gift. A lifetime gift is not an advancement unless there is a WRITING:
(1) In which the intestate or the heir acknowledges that the gift is an advancement (2) OR which otherwise indicates the gift is to betaken into account when computing the heir's intestate share. |
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Advancement - Effect
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If an advancement is proven, the advanced amount is put back into the "hotchpot" and the advancee/heir's share is reduced accordingly.
EXCEPTION: the "hotchpot" effect will NOT require RETURN OF EXCESS over an advancee's intestate share. |
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Satisfaction of Legacies
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RULE: when a T leaves a valid will and makes a GIFT TO HIS CHILD during the T's lifetime, there is a rebuttable presumption that such a gift is in satisfaction of the beneficiary's legacy (i.e., devise made pursuant to the will).
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Limitation of Satisfaction
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RULE: satisfaction applies ONLY TO GENERAL OR RESIDUARY devises made to T's children.
Does NOT apply to specific devises (see Ademption). |
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Satisfaction v. Advancement
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Satisfaction is a doctrine relevant to wills.
Satisfaction is similar in theory, but opposite in presumption to the doctrine of Advancement for intestate distributions. |
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Formal Requirements of a valid will or codicil
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(1) Legal Capacity (when will executed, T must be 18 yo or a member of the armed forces)
(2) Testamentary Capacity (when will executed, T must have been of sound mind) (3) Testamentary Intent (It must be evident that the T's intent upon executing a particular document was that it is to serve as his will - not a bribe or joke) (4) Proper execution and attestation |
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Execution and Attestation Requirements
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(1) Will must be IN WRITING (except nuncupative wills)
(2) Will must be SIGNED BY T or a proxy at T's DIRECTION AND IN T's PRESENCE (3) Will must be signed by 2 ATTESTING Ws (4) T's signature must be MADE OR ACKNOWLEDGED by T IN THE PRESENCE OF BOTH Ws AT THE SAME TIME (5) Ws must sign in the presence of each other and T (6) T must PUBLISH THE WILL (declare to Ws that this is her will, Ws don't have to read it) |
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Execution and Attestation Requirements - Exceptions
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IN may also recognize:
(1) Nuncupative wills (2) Wills that adhere to IN's choice of law rule |
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Signature Requirement
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(1) Any mark intended as T's mark is sufficient
(2) Order of signing NOT critical, just all must be part of a CONTEMPORANEOUS TRANSACTION (3) T can sign ANYWHERE on will; however, unattested lines added after the will is fully executed are invalid. |
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Presence Requirement
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RULE: IN follows the majority CONSCIENCE PRESENCE RULE - signing in someone's "presence" necessitates only sufficient physical proximity that one is conscious of where they are and what they are doing.
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W Competency
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RULE: A W only needs to be of sufficient mental competency at the time of the will's execution to know what he was witnessing and attesting. (No minimum age requirement)
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Interested Ws
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RULE: an attesting W cannot be a beneficiary under the will unless the interested W is either:
(1) Supernumerary (2) OR W-Beneficiary otherwise entitled (would have received an intestate share or gift pursuant to an earlier will he did not witness) |
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Purging Statute
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If interested W is neither supernumerary, nor otherwise entitled, his gift is VOID in order to otherwise validate the will.
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Is an Executor an interested W?
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NO, so long as he is not also a beneficiary.
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Attestation Clause
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NOT required in IN; HOWEVER, it substitutes for courtroom testimony regarding the will's due execution.
Def: part of the will and describes how the will was duly executed and attested to by the T and Ws. |
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Self-Proving Affidavits
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NOT required in IN; HOWEVER, presence means no Ws are required to testify at probate.
Def: a notarized affidavit which can be signed either at the same time as the will (and thereby incorporated into the physical will) or after the will is signed by the T and the Ws. Affirms under penalty of perjury how the will was duly executed and attested by the T and the Ws. |
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Videotape
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May be admissible to prove:
(1) Proper execution (2) Testamentary Intent (3) T's mental state or capacity (4) OR other relevant matters |
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Holographic Will
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IN does not recognize holographic wills (handwritten and signed by T, but not witnessed) unless they adhere to IN's choice of law rules.
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Nuncupative Wills
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RULE: Nuncupative (oral) wills are only recognized in IN if:
(1) the "will" was made while T was in imminent peril of death (2) AND T died because of the impending peril. |
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Nuncupative Wills - formalities
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For a nuncupative will to be valid:
(1) T must orally declare the will before 2 disinterested Ws (2) Will must be reduced to writing within 30d after T's declaration (3) AND will must be submitted to probate within 6m of T's death. |
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Nuncupative Wills - money limit
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Can only dispose of PERSONAL PROPERTY up to $1000 in value.
$10k if T is in military. |
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Nuncupative Wills - revocation limit
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An oral will can revoke a previous oral will, but NOT A WRITTEN WILL
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Atty Liability
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If an atty is negligent in the preparation of a will, there is no privity of K defense in IN.
The atty owes a duty to the T and the beneficiaries . Beneficiaries can sue the T's atty for negligence in will preparation or execution for the amount they should have received if will was valid. |
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Choice of Law
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RULE: a will is valid in IN if it is executed in accordance with:
(1) IN law (2) the law of the state where executed (3) the law of the state of the T's domicile when executed (4) OR the law of the state of the T's domicile at death |
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How can a will be revoked?
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(1) Testamentary writing (another will or codicil)
(2) Physical act (3) OR law (divorce and annulment revoke shares to former spouses) |
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Revocation by writing
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(1) A writing executed with all testamentary formalities (another will or codicil)
(2) AND serves to revoke in whole or in part by express declaration or implication. |
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Revocation by physical act
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(1) An act of mutilation or destruction (crossing out signatures of T and Ws probably sufficient)
(2) Done with intent to revoke (3) Performed by T or T's proxy in T's presence and at his direction. (4) That touches and essential part of the will (5) AND serves to revoke the whole will |
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What is the presumption if T last had possession of the will and it has been mutilated?
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That T did it.
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Was will revoked when T called atty who tears up will and mails pieces to T?
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NO revocation bc not performed in T's presence.
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What is the presumption if T last had possession of the will and it cannot be found?
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Presumed that T personally revoked the will.
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How is the presumption of T's destruction overcome?
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By a preponderance of the evidence that T did not revoke the will. (i.e., person adversely affected by will's contents had access to the will)
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Can you revoke by act a photocopy of a will?
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No, destroying the photocopy does not revoke the original will.
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How is a will executed in duplicate revoked?
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Only one needs to be revoked to raise the presumption of revocation by act in IN.
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Lost or Accidentally Destroyed Will
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As a practical matter, if a will is lost or accidentally destroyed if may still be probated if the proponents of such missing will can prove:
(1) valid will execution with all testamentary formalities (2) the cause of non-production (3) AND substantial proof of the will's contents (generally by the testimony of 2 Ws or photocopy of the will) |
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Revival
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RULE: NO automatic revival of revoked wills in IN.
RULE: For a revoked will to be revived, it must be: (1) RE-EXECUTED with all testamentary formalities (2) OR REPUBLISHED BY CODICIL (a subsequent properly executed codicil expressly indicates an INTENT TO REVIVE IT) |
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Republishing by Codicil
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While a codicil is an amendment to a will, it also republishes the will to the date the last codicil was executed.
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Effect of revocation of will v. codicil
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A will and a codicil must BOTH be executed and revoked with testamentary formalities.
The revocation of a will makes any codicils invalid. The revocation of a codicil restores earlier testamentary language. |
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Dependent Relative Revocation
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RULE: if the revocation of a will is dependent upon a mistake of law or fact as to the validity of another disposition, the revocation will be DISCHARGED, if:
(1) there is IMMEDIATE INTENT to make a new will, but that such intent is not met due to the mistake. |
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Dependent Relative Revocation - rationale
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DRR follows a second best solution rationale.
DRR will only apply is disregarding the revocation seems closer to T's intent than to have no will at all. |
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Revocation by law
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Divorce or Annulment from former spouse.
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Effect of divorce or annulment
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(1) Revokes all provisions in will or revocable trust in favor of former spouse
(2) Divorce or annulment does NOT revoke former spouse's life insurance beneficiary status. (3) Does NOT revoke bequests to anyone besides former spouse. |
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Incorporation by reference
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RULE: in order to incorporate an extrinsic, nontestamentary document by reference:
(1) the writing must be IN EXISTENCE at the TIME OF THE WILL'S EXECUTION AND AT T'S DEATH (2) the will must show AN INTENT TO INCORPORATE (3) AND the will must SUFFICIENTLY IDENTIFY SUCH WRITING. |
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Separate writing identifying bequests of tangible personal property
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RULE: in 2005, IN Legis recognized that tangible person property may be disposed of by a writing:
(1) Signed by T (2) Referred to in the will (3) Disposes of tangible personal property not specifically disposed of in the will (4) Describes items and beneficiaries with REASONABLE CERTAINTY (5) AND may be written before or after the will |
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What canNOT be disposed of by a separate writing identifying bequests of tangible personal property?
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Money
Intangible property Real property Property used in trade or business |
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Acts of Independent Significance
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RULE: a will may dispose of property by reference to facts or events independent of the will.
(1) Such an event can occur before or after the will's execution. (2) The event may identify beneficiaries or property |
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Pour-Over Will/Trust
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A pour-over will associated with a trust is a valid statutory means of estate planning.
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Benefits of a Pour-Over Will/Trust
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(1) The instrument that creates an intervivos trust does not need to be executed with the same formalities as a will (no Ws)
(2) A will may direct payments to the trust during T's lifetime so long as the trust is CLEARLY IDENTIFIED in T's will and is IN EXISTENCE at T's death (3) The trust may be AMENDED without testamentary formalities AFTER the will executed. |
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Joint Will
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One document that serves as the testamentary plan for 2 or more people (usually spouses)
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Reciprocal Will
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2 documents (or more) that reflect a mutual testamentary plan for two or more people
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Revocation of Joint and Reciprocal wills
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RULE: May be revoked by only 1 T.
EXCEPTION: if the will was made UPON A K NOT TO REVOKE, revocation may give rise to an action for breach of K. |
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Revocation of Joint and Reciprocal wills - presumption of K?
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RULE: there is no presumption of K.
RULE: the mere fact that joint or reciprocal wills contain identical or "mirror" provisions is not sufficient evidence of a K not to revoke. |
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Revocation of Joint Wills - presumption of K?
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Joint wills are more likely to be considered contractual.
RULE: Joint wills are contractual if they treat property of Ts' as a single unit (we us our used to dispose of the combined estate) |
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Validity of a K not to revoke
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A K not to revoke is valid if FAIR and BASED ON ADEQUATE CONSIDERATION.
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Lapsed Gifts and Anti-Lapse Statutes
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RULE: you cannot make a gift to a dead person. If a will beneficiary dies prior to the T, the gift lapses (fails).
MAJOR EXCEPTION: Anti-Lapse Statutes |
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Anti-Lapse Statutes
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The gift passes to the predeceased beneficiary's descendants IF the predeceasing beneficiary is:
(1) a descendant of the T (2) has surviving descendant (3) AND there is no contrary provision in the will |
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If Anti-Lapse Statute does not apply, to whom does the lapsed gift go?
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The residuary taker.
If the residuary taker does not survive or there is none, then distributed via the intestacy scheme. |
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Surviving Residuary Beneficiary Rule
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RULE: if a residuary beneficiary predeceases T, any surviving residuary beneficiaries SPLIT THE PREDECEASED'S SHARE.
EXCEPTION: the anti-lapse statute trumps the "surviving residuary beneficiary" rule. |
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Class Gift
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RULE: class members who survive T take gift.
RULE: if a gift is made to a class and a class member predeceases the T, any surviving class members split the predeceased class member's share. EXCEPTION: the anti-lapse statute, if applicable, trumps the class member rule. |
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Adoption after minority
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RULE: the word "descendant" for the purposes of the anti-lapse statute and class gifts (NOT intestacy) excludes children adopted after reaching 21 by T or persons within the scope of the anti-lapse statute.
EXCEPTION: if T refers to the "Children of T" as a class of T's children, the post-21 adopted child of T is recognized. |
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Elective Share of spouse
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RULE: a spouse cannot be complete disinherited by the predeceased spouse.
RULE: By statute a surviving spouse can "elect" to take a fixed amount against the will. |
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When must spouse have married T to take the elective share?
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RULE: A spouse entitled to an elective share may marry T before or after the will is executed.
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Amount of Elective Share
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RULE: In IN, the elective share is 1/2 of both net personal and real property.
EXCEPTION: Subsequent Childless Spouse takes - 1/3 of the net personal estate - 1/4 of the FMV of real property |
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Effect of Election
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RULE: When a surviving spouse elects to take against the will, the spouse is deemed to have renounced all rights to other property of decedent.
EXCEPTIONS: (1) Spouse may retain specific devise and make up the rest in cash or property. (2) All property NOT retained by spouse passes as if she predeceased the decedent. |
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If spouse does not seek elective share?
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Takes all property devised to her by the will and her intestate share of any property that is not disposed of by the will.
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Time for filing election
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RULE: no later than 3m after will admitted to probate.
EXTENSION: if any of the following are pending at the end of the 3m period, spouse may elect to take against the will no later than 30d from the final determination: (1) a will contest (2) a will construction action (3) an action ot determine the existence of decedent's surviving issue (4) any other action that affects the amount of the surviving spouse's share |
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Form of Election
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Must be:
(1) In writing (2) Signed (3) Acknowledged (4) AND filed by the surviving spouse (or her guardian) |
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Waiver of Election
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Enforceable if in writing and signed AND:
(1) if made PRIOR TO MARRIAGE, the promise to marry is sufficient consideration (2) In ALL OTHER CASES, the nature and extent of the right is fully disclosed to the individual against whom it is being enforced AND is supported by fair consideration. |
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Decedent's effort to limit surviving spouse's elective share through intervivos transfers
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RULE: if T transfers all of her significant property into an intervivos revocable trust, her surviving spouse may take a share of the property in the trust ONLY IF the trust was INTENDED TO DEFEAT the spouse's right to election.
Determined by looking at: (1) the trust terms (2) AND any other evidence of T's intent |
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Pretermitted Children
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RULE: if a child is BORN OR ADOPTED BY T AFTER THE WILL IS EXECUTED, the child may have his INTESTATE SHARE, unless it is shown that:
(1) the omission was intentional (2) OR at the time the will was executed the T had one or more other children known to him to be living AND devised substantially all of her estate to his surviving spouse. |
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Family Allowance
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RULE: a surviving spouse (or if none, the decedent's minor children under 18) is entitled to a $25k allowance.
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Effect of Family Allowance
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(1) Is to be satisfied FIRST from any personal property or residence (or both) of the decedent and THEN from any other real property
(2) If taken, must be paid BEFORE THE CREDITORS (3) AND is NOT CHARGEABLE against the distributive shares of the spouse or children. |
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Ademption
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RULE: when a specific bequest is not in T's estate upon death, the bequest is adeemed (the gift fails)
NOT applied to: (1) General or demonstrative gifts (2) Specific gifts when change in form not substance (3) Some special instances involving stock and securities (4) Other statutory exceptions |
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Specific Gifts
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Identified property, other than monetary value
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Demonstrative Gifts
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A general amount from a specific source
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General Gifts
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A general amount of monetary value
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Fact patterns of changes in form v. substance
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(1) Stock Split - change in form, not substance
(2) Dividend Reinvestment Plan - change in form, not substance (3) Cash dividend received by T prior to death from the stock conveyed in the will - beneficiary does NOT receive the cash (4) T sells stock shares bequeathed prior to death - beneficiary gest the date of death value of the 5 shares |
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Limitations on Ademption - Specific Devisee make take
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(1) Unpaid balance of purchase price and SI when T sold property prior to death
(2) Unpaid condemnation award when part/all of specific devise taken by eminent domain (3) Unpaid casualty insurance when loss of part/all of specifically devised property |
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Rationale for limiting ademption
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To intent by T to adeem.
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Abatement
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RULE: if an estate cannot cover all the debts and devises, absent contrary provisions in the will, DEBTS AND EXPENSES PAID FIRST and the estate abates as follows:
(1) Intestate Property (2) Residuary Estate (3) General Legacies (4) Specific Devises and Bequests |
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Abatement within each category of devise
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Pro rata and there is no distinction between real and personal property.
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Abatement and Demonstrative Legacies
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Hybrid.
Treated as a Specific Devise to the extent named property exists. Treated as a General Devise to extent estate is insufficient. |
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Exoneration of Liens
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RULE: liens are NOT exonerated on specific devises unless the will so directs.
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Timing of will contests
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RULE: Must be filed no later than 3m from the date of the admission of the will to probate.
EXCEPTIONS: (1) PL did not file timely bc of fraudulent misrepresentation (2) OR purported will was on its face clearly violative of the Probate Code |
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Requirements of will contest complaint
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(1) In writing
(2) Verified (3) Bond required to ensure payment of costs (4) Ds designated as executor and devisees under the will |
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Grounds for will contest
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(1) T was of unsound mind
(2) Undue execution (insufficient Ws) (3) Will executed under influence of fraud or duress (4) Any other valid objection to the will or its probate |
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Effect of successful will contest
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(1) Will can fail in whole or in part
(2) Failed devises pass to the residuary clause, if valid (3) Otherwise, intestate statutes apply |
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Lack of Testamentary Capacity
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ARGUMENT: T was not of "sound mind"
TEST: (CL) ask if T understands: (1) the value and extent of her property (2) the natural objects of her bounty (3) the nature of the disposition she is making ("their desserts with respect to their treatment and conduct of her") (4) AND the relation of these elements to one another in forming a will. |
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Presumption re: Testamentary Capacity
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T is presumed to be of sound mind, so BOP for lack of capacity is on the contesting party
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Undue Influence
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RULE: undue influence compels a T to do something she would not otherwise do.
TEST: ct looks at whether: (1) Influence was exerted (2) the effect of the influence was to overpower T's free will (3) AND the product of the influence was a will that wold not have been written BUT FOR the influence |
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Sufficient evidence for Undue Influence
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KEY: the contestants must establish the NEXUS btwn the circumstances and the undue influence.
Circumstantial Evidence may include: (1) Opportunity (due to close relationship with T) (2) Susceptability (due to old age, illness) (3) OR unnatural disposition (one child gets disproportionately more than another) |
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When is there a Presumption of Undue Influence?
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(1) a CONFIDENTIAL RELATIONSHIP existed btwn T and the beneficiary exercising undue influence
(2) AND there is an UNNATURAL DISPOSITION in favor the party |
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Are No-Contest Clauses permitted?
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NO, they are unenforceable in IN
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Fraud
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RULE: fraud occurs when there is deception or some other misrepresentation that is designed to distort T's intentions
May occur: (1) In the EXECUTION (2) OR in the INDUCEMENT |
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Mistake
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RULE: extrinsic evidence is traditionally NOT ADMITTED to cure mistake in Execution or Inducement.
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Mistake in Execution Exception
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If a T mistakenly executes a document as a will that she does not believe to her her will, the mistaken will can be void given lack of testator intent.
THEN, majority of states distribute by intestate statutes. |
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Mistake in Inducement Exception
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Limited statutory exception if:
(1) T mistakenly believes any of his CHILDREN to be dead (2) AND because of such mistake fails to provide for that child in the will, child can take intestate share. |
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Ambiguity
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RULE: In IN, if a will contains a latent or patent ambiguity, extrinsic evidence may be admitted to clarify.
NOTE: IN S Ct discarded the difference in 2006 |
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Latent Ambiguity
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Will on its face seems clear, but uncertainty arises in trying to apply or effectuate it.
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Patent Ambiguity
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The uncertainty is clear on the face of the will.
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