Capacity; Contests Flashcards
Standing
What must the contestant of a will be?
An interested person–has a legally ascertainable pecuniary interest that will be affected by
whether the will is probated or set aside
e.g., beneficiary of a prior will, spouse, heir
Mental Capacity to Make a Will
What are the two requirements for making a will?
- be 18
- have mental competence
Mental Capacity to Make a Will
to establish mental competence: the proponent must prove mental capacity by
PoE
Mental Capacity to Make a Will
What exactly must the proponent prove?
At the time the testator executed the will the testator was capable of recollecting
1. his property,
2. the natural objects of his bounty, and
3. their claims upon him
and that the testator knew:
1. the business about which the testator was engaged, and
2. how the testator wished to dispose of his property;
The testator does not have to have all the force of intellect that the testator had during a former period — and, in fact, the testator may even be legally incompetent to transact other business;testator wished to dispose of his property;
Mental Capacity to Make a Will
How does burden shifting work with proving mental capacity?
The proponent starts with the burden of proving testator had mental capacity.
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 to the person contesting capacity, although the burden of persuasion remains with the proponent of the will.
Mental Capacity to Make a Will
On appeal, what is the standard of review for the trial courts determination of mental capacity?
clearly wrong or lacks supporting evidence
Being placed under a ____________ is not prima facie evidence that the testator lacks mental capacity
guardianship
What is an insane delusion and when will it be inconsistent with mental capacity?
- Anirrational, persistent belief in an imaginary state of facts
- when it affects the will
Undue Influence
What is undue influence?
Influence on the testator that destroys the testator’s free will; a set of conditions that the
testator cannot resist, that controls the testator’s volition, and that induces the testator to do something that the testator otherwise would not do.
Undue Influence
The person contesting the will can create a presumption of undue influence by showing three points:
- The testator suffered from weakness of mind when the will was made (e.g., from advanced age)
- The testator named a beneficiary who had a relationship of confidence or dependence with the testator (e.g., attorney or financial manager); and
- The testator previously had expressed an intention to make a contrary disposition of her property
Undue Influence
Once the presumption of undue influence has been raised:
The burden of production shifts to the proponent, the burden of persuasion remains with the contestant
Fraud
A court can invalidate a will or a codocil procured through fraud. Requirements?
- The wrongdoer misrepresented a material fact to the testator; and
- The wrongdoer intended to deceive the testator in order to influence the testator to make a disposition of her property that the testator otherwise would not have made.
Fraud
When is there a presumption of fraud? Shift of burden?
When the drafter is also a major beneficiary of the will. Presumption shifts the burden for producing contrary evidence, but not the burden of persuasion, to the proponent of the will.
Public-Policy Limitations on the Terms of a Will
What have the VA SC struck down in wills?
- provisions that infringe upon a beneficiary’s religious belief
- provisions that unreasonably limit a beneficiary’s decisions about marriage–such as barring beneficiary from marrying at all or requiring that the beneficiary marry a particular person. BUT, can prohibit the beneficiary from marrying a particular person.
will generally enforce no-contest clauses which disinherit any beneficiary who contests a will
