Intent

Question 1

4 Issues

Answer 1

Capacity; Insane Delusion; Fraud; Undue Influence

Question 2

Capacity

Answer 2

Over 18; Understand extent of your property; Know the ‘natural objects of your bounty’ (relatives/spouse); Know the nature of your act (devising a will and its consequence)

Question 3

Consequence of no capacity

Answer 3

entire will void

Question 4

Insane Delusion:

Answer 4

If at time of execution: Testator had false belief; Belief was because of sickness in mind; No evidence to support belief; Delusion affects the will.

Question 5

Insane Delusion consequence:

Answer 5

part of will affected is removed; that affected part goes to residuary devisee or intestate succession

Question 6

Lack of capacity v. delusion:

Answer 6

Lack of capacity = entire will is invalid b/c you don’t know what’s going on
Delusion = Just that area affected (you know what’s going on, just mistaken belief of a part of what’s happening)

Question 7

Fraud elements:

Answer 7

1) Material Known Misrepresentation 2) With Intent to induce reliance 3) Reliance is induced

Question 8

Types of fraud for WIlls

Answer 8

Fraud in the inducement, fraud in the execution, and Fraud in preventing testator from revoking will

Question 9

Fraud in the Execution:

Consequence?

Answer 9

Forging testator’s will OR telling him what he’s signing isn’t a will but it is. Entire will is invalid, property passes by intestate succession, unless prior valid will

Question 10

Fraud in the Inducement:

Consequences:

Answer 10

A misrepresentation is made to affect the contents of the will
Consequence: that part invalid

Question 11

Fraud in inducement options for court:

Answer 11

1) give property to residuary devisees; 2) No residue=intestate succession; 3) Constructive Trust Remedy

Question 12

Constructive Trust remedy:

Answer 12

When you make property go to residuary devisee or intestate succession and the devisee/heir becomes constructive trustee to execute will as testator wanted determined by court

Question 13

Fraud in inducement vs. fraud in execution:

Answer 13

Fraud in Execution: Didn’t mean to sign a will

Fraud in Inducement: meant to sign will but misrepresentation affected it

Question 14

Fraud in preventing testator from revoking

Answer 14

Similar to Fraud in Inducement (You give misrepresentation to keep testator from revoking the will so you can keep the inheritance); results in NO PROBATE of the will, constructive trustee

Question 15

Undue Influence: Types

Answer 15

Prima Facie Case
Case Law Presumption
Statutory Presumption

Question 16

Undue Influence: Prima Facie Elements

Answer 16

1) Testator has a weakness like psychological, financial, physical; 2)Opportunity: Wrongdoer had access to testator 3) Active participation (Wrongdoer’s action that exerted influence) 4) Unnatural result (wrongdoer gets devise, wouldn’t have otherwise) THAT PART AFFECTED VOID; goes to residuary, intestate succession, constructive trust

Question 17

Undue Influence: Case Law Presumption Elements:

Answer 17

1) Confidential relationship (attorney/client, doctor/patient; CA= close friends too!) 2) Active Participation 3)unnatural result. THAT PART AFFECTED VOID; Goes to residuary, Intestate succession, Constructive Trust Remedy

Question 18

Fraud v. Undue Influence

Answer 18

Fraud = Lie gets bad guy stuff

Undue Influence = Honesty but a threat gets bad guy stuff

Question 19

Statutory Presumption of Undue Influence:

Answer 19

Presumed to be undue influence if following get it:
person drafting gets stuff; a care custodian (nurse) of dependent adult; spouse of the two above.
Does NOT apply: if instrument is drafted by blood relative. Also if instrument is independently assessed by attorney OR transfer under $5k if estate is over $100k. CONSEQUENCE: gift lapses as if transferee predeceased, transferee does not take

Question 20

If you get anything to do with undue influence discuss:

Answer 20

ALL 3: Prima facie case of undue influence, statutory presumption of undue influence, Case Law Presumption of undue influence