Capacity and Contests Flashcards
who has standing to contest a will?
must be an interested person with a legally ascertainable pecuniary interest dependent on the will being probated or set aside (more than a mere expectancy)
who has the power to dispose of her estate by will
must be 18 years old with mental capacity
what is the test to establish mental capacity (3 prongs + the prong for when to apply the test)
-will proponents must prove mental competence by a preponderance of the evidence (NOT C&C)
-the testator need not retain the full force of intellect; may even be legally incompetent to transact other business
-testamentary capacity
apply prongs at the time of the execution of the will
what is testamentary capacity
it is sufficient that at the time the testator executed his will, he was capable of recollecting his property, the natural object of his bounty, and their claims upon him, and knew the business about which he was engaged and how he wished to dispose of his property
what is an insane delusion
an irrational, persistent belief in an imaginary state or facts
does an insane delusion affect capacity?
it does affect capacity to execute a valid will unless the will was the product of the insane delusion
who has the burden of proof of showing that the testator had mental capacity?
The proponent of the will. By showing that the testator complied with the formal requirements to execute a valid will, the proponent creates a presumption in favor of mental capacity. The burden of producing evidence about incapacity shifts the person contesting capacity although the burden of persuasion remains with the proponent of the will.
what is undue influence?
measures taken that the testator could not resist, that controlled the testator’s volition, and that induced the testator to act as he would not otherwise act
what is the standard for a contestant to will based on undue influence
clear and convincing evidence
how to prove undue influence (3):
contestants shift the burden of production to the proponent by showing:
-testator suffered from weakness of mind when the will was made
-testator named a beneficiary in a relationship of confidence or dependence, and
-testator previously expressed an intention to make a contrary disposition
burden of persuasion remains with the contestant
tortious interference with inheritance
not recognized in Virginia
to prove a will is procured by fraud: (2)
-the wrongdoer misrepresented a material fact to the testator, and
-the wrongdoer intended to deceive testator to influence the testator to make a disposition she would not otherwise have made
when is there a presumption of fraud
if the drafter of a will holds a position of confidence and is a major beneficiary in the will; the presumption shifts the burden of production, but not persuasion, to the will proponents
what about a will that infringes on marriage?
a will can prevent you from marrying a particular person, but it cannot preventing you from marrying period and it also cannot require you to marry a particular person
what about a will that infringes on religious belief
va strikes conditions that infringe upon the religious beliefs of beneficiaries
