Will Contests; Undue Influence

Question 1

What is the general rule re: undue influence and wills?

What must contestant show to prove undue influence?

Answer 1

The EXECUTION or REVOCATION of a will or part of a will is INEFFECTIVE to the extent it was procured by “undue influence”

“Undue influence” =

1. influence was exerted on T
2. effect of influence was to override T’s free will
3. produce of influence was will that would not have been executed but for the influence

NOT Enough –> mere pleading, begging, nagging, cajoling, or even threatening. The FREE WILL of T must be destroyed

Question 2

How is undue influence usually proven?

What must the court consider?

Answer 2

Usually proven through circumstantial evidence.

Court must consider:

1. victim’s vulnerability
2. influencer’s apparent authority (relationship btwn influencer and victim)
3. actions and tactics (examples –.> controlling victim’s access to necessities or people, use of affection or intimidation, initiating changes to victim’s property or personal rights)
4. equity of the result

Question 3

When is there a PRESUMPTION of undue influence?

What is the effect?

Answer 3

There is a PRESUMPTION of undue influence if:

1. Confidential relationship existed btwn T and beneficiary; AND
2. Beneficiary actively participated in someway in procuring or drafting the will; AND
3. Beneficiary UNDULY benefits form the instrument
   For Example –> provisions of the will appear to be unnatural and favor the person who allegedly exercised undue influence

EFFECT –> burden shifts

Question 4

For the purposes of a presumption of undue influence, what is a confidential relationship?

Answer 4

Attorney- client
doctor - patient

Could be any other relationship if there was an unusual amount or reliance or trust.

NOTE –> presumption does not apply against spouses or DP’s, even though there is technically a confidential relationship

Question 5

CA statutory presumption of fraud or undue influence

Answer 5

CA has presumption that donative transfer to certain people is the product of undue influence or fraud:

1. drafter of instrument
2. person in fiduciary relationship w transferor who transcribed instrument or caused it to be transcribed
3. care custodian of a dependent adult transferor IF the instrument was executed during the provision of substantial and ongoing health or social services or within 90 days before or afterwards

NOTE –> people who had a relationship w decedent before he became dependant and who took no renumeration for care are NOT care custodians.

NOTE –> presumption is conclusive w regards to drafter, his relatives and certain associates

Question 6

What is the general rule w regards to fraud?

Answer 6

Any gift resulting from fraud is invalid.

1. deceit must be WILLFUL
2. T must have been ACTUALLY DECEIVED, and ACTED IN RELIANCE on it
3. fraud must be perpetuated by a beneficiary

Question 7

What are the two types of fraud?

Answer 7

1. “fraud in the execution” = misrepresentation as to nature or contents of instruments
2. “fraud in the inducement” = misrepresentation of facts that influence T’s motivation

Question 8

What happens if there is fraudulent PREVENTION of a will?

Answer 8

court may impose constructive trust on heirs, even innocent heirs

some courts –> won’t give relief

Question 9

What are the remedies for fraud?

Answer 9

1. denial of probate for tainted portions of will

2. imposition of constructive trust