Will Contests Flashcards
Testamentary capacity
Must exist at the time a will is executed.
To have capacity, a testator must be at least 18 years old or else be an emancipated minor and must understand the nature and extent of his property, the persons who are the natural objects of his bounty, and the nature of the disposition being made.
Elements of undue influence
- There was influence exerted on the testator,
- The effect of the influence was to overpower the mind and free will of the testator, and
- The product of the influence was a will, or portion thereof, that would not have been executed but for the influence
Insane delusion
A spontaneous conception and acceptance as fact of that which has no real existence except in imagination.
Persistently adhered to against all evidence and reason.
No evidence to support, no reasonable hypothesis can support, no foundation in reality.
Gifts to lawyers and other disqualified persons
Any part of a written instrument making a gift to a lawyer (or a person related to a lawyer) is void if the lawyer prepared or supervised the execution of the instrument, unless the lawyer is related to the testator/donor. This prohibition cannot be waived.
Will contest
A will id void if its execution is procured by undue influence, fraud, duress, or mistake. If only a part of the will was so procured, only that part is void.
Fraud
A successful contest on grounds of fraud requires that the testator have been willfully deceived as to the character or content of the instrument, or as to extrinsic facts that would induce the will or a particular disposition, or with respect to facts material to a disposition.
If a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate benes in favor of those who would have taken had the will been made.
Mistake
If a mistake of fact or law that affects the testator’s intent or the terms of the will is proven by clear and convincing evidence, by statute the court may reform the will to reflect the testator’s intent.
Mistake in the execution of the will
Extrinsic evidence is admissible to show that a testator did not know that the instruments he was signing was a will, because the existence of testamentary intent is at issue.
If the testator mistakenly signs the wrong will, some courts will deny relief, but a Florida court will grant relief if the mistake is proven by clear and convincing evidence.
Mistake in inducement
Traditionally, no relief would be granted if the mistake involves the reasons a testator made his will a particular way and the mistake was not fraudulently induced.
Under the Florida statute, however, if it is proven that the will or its terms were induced by mistake, the will can be reformed.
Mistake as to contents of will
Under the traditional rule, extrinsic evidence was not admissible to show that a provision was omitted or is incorrect.
Under the plain meaning rule, evidence was not admissible to contradict the plain, unambiguous language of a will. However, under the Florida statute, evidence is admissible to show that a provision was omitted or is incorrect, even if the language of the will is unambiguous.
If the mistake is proven by clear and convincing evidence, the will may be reformed.
Ambiguity - Extrinsic evidence admissible
A latent ambiguity arises if a will’s language is clear on its face but results in a misdescription as applied.
A patent ambiguity exists if the uncertainty appears on the face of the will. Extrinsic evidence is admissible to cure both patent and latent ambiguities.
Mistake as to revocation
Under certain compelling circumstances, a constructive trust may be imposed when a testator mistakenly believes he has effectively revoked a will or codicil, e.g. by destroying a photocopy.
No-contest clauses
In Florida, a provision in a will purporting to penalize a bene for contesting the will or instituting other proceedings relating to the estate is unenforceable.
