Ch 7: Will Contests

Question 1

What is a will contest? (T)

Answer 1

A will contest is an objection raised against the validity of a will, based on the contention that the will does not reflect the testator’s actual intent.

Question 2

What is the basis of a will contest? (T)

Answer 2

The basis of a will contest is the assertion that the testator (1) lacked testamentary capacity, (2) was operating under an insane delusion, or (3) was subject to undue influence or fraud.

Question 3

What is the period of limitations for will contests? (T)

Answer 3

Generally, a will contest must be filed within six months after the will is admitted to probate. Proper notice should also be given to all heirs and legatees under the will, as well as to creditors of the estate. Will contests must be made within the specified period after probate is opened, or the claims are barred.

Question 4

Who has standing during will contests? (T)

Answer 4

Only directly interested parties who stand to benefit financially may contest a will, such as beneficiaries under the current or a prior will. Creditors of beneficiaries, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest.

Question 5

Regarding will contests, do decedent’s creditors have standing? (T)

Answer 5

Because the decedent’s creditors have the same rights regardless of whether the will is contested, general creditors cannot contest, though a judgment creditor of a beneficiary under a will may be able to contest.

Question 6

Regarding will contests, does the spouse of a beneficiary under a prior will have standing? (T)

Answer 6

Neither a spouse nor any other prospective heir of a beneficiary under a prior will may contest.

Question 7

Regarding will contests, do omitted heirs have standing? (T)

Answer 7

Because the omitted heir’s share is the same regardless of whether the will is contested, no omitted heir can contest a will.

Question 8

Regarding will contests, what is testamentary capacity? (T)

Answer 8

To execute or revoke a will, the testator must be at least 18 years old and of sound mind at the time of execution or revocation.

Question 9

Regarding will contests, when does the testator lack the requisite mental capacity? (T)

Answer 9

The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know:

i) The nature of the act;

ii) The nature and character of his property;

iii) The natural objects of his bounty; and

iv) The plan of the attempted disposition.

Question 10

Does the testator require actual knowledge for testamentary capacity? (T)

Answer 10

No. The testator only needs the ability to know. Actual knowledge is not required.

Question 11

Is old age alone sufficient to constitute lack of capacity? (T)

Answer 11

Old age alone is insufficient to constitute lack of capacity.

Question 12

Is adjudication of incompetence dispositive on the issue of testamentary capacity? (T)

Answer 12

Adjudication of incompetence is not dispositive on the issue of testamentary capacity.

Question 13

Who is the burden of proof on when someone is alleging testamentary incapacity? (T)

Answer 13

The burden of proof is on the party alleging testamentary incapacity.

Question 14

What areas do some states require a deficiency in to prove lack of capacity? (T)

Answer 14

Some states also require a deficiency in one of the following areas to prove lack of capacity: (1) alertness and attention, (2) information processing, (3) thought processing, or (4) mood modulation. These deficiencies are considered only if they significantly interfere with the individual’s ability to understand and appreciate the consequences of his actions.

Question 15

What is an insane delusion? (T)

Answer 15

An insane delusion is a belief that does not have any factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. However, courts will generally not apply the doctrine to religious or spiritual beliefs.

Question 16

Regarding insane delusion, what is the rational-person test? (T)

Answer 16

The majority rule is that a belief is an insane delusion if a rational person in the testator’s situation could not reach the same conclusion.

Question 17

Once it is determined that the testator suffered from an insane delusion, what must the contestant show? (T)

Answer 17

Once it is determined that the testator suffered from an insane delusion, the contestant must show that the delusion was the sole cause of the testamentary disposition.

Question 18

Regarding insane delusion, what do you need to remember for the bar exam? (T)

Answer 18

Remember to discuss causation when analyzing whether an insane delusion exists. There is only a defect in capacity if the delusion was the cause of the strange disposition.

Question 19

What is undue influence? (T)

Answer 19

Undue influence is mental or physical coercion exerted by a third party on the testator with the intent to influence the testator such that he loses control of his own judgment.

Question 20

Is circumstantial evidence, without any direct evidence, sufficient to establish undue influence? (T)

Answer 20

No. Circumstantial evidence, without any direct evidence, is insufficient to establish undue influence. Simply having an opportunity to exert influence or demonstrating the testator’s susceptibility to being influenced (e.g., because of old age, poor health, or memory problems) does not establish that the testator’s mind was overpowered.

Question 21

What factors are considered in determining the extent of beneficiary’s involvement in procuring the will? (T)

Answer 21

i) The beneficiary’s recommendation of an attorney and providing the attorney with instructions;

ii) The beneficiary’s presence during the writing and execution of the will; and

iii) The beneficiary’s securing of witnesses.

Question 22

Once a will is determined to have been the product of undue influence, what can happen to it? (T)

Answer 22

Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered in so doing. Most courts will invalidate only those portions that are infected by undue influence.

Question 23

What is (and who has) the burden of proof to show undue influence? (T)

Answer 23

The contestant has the burden of proving (1) the existence and exertion of influence and (2) that the influence overpowered the testator’s mind and will. The result must be a will that would not have been executed but for the influence.

Question 24

In cases of undue influence, what is the presumption regarding a confidential relationship? (T)

Answer 24

A presumption of undue influence arises when the principal beneficiary under a will stands in a confidential relationship to the testator (e.g., the testator’s attorney or physician), when he participated in executing the will, and when the gift to the beneficiary is unnatural or consists of most of the estate.

Question 25

When a presumption of undue influence arises, who does the burden shift to? (T)

Answer 25

When a presumption of undue influence arises, the burden shifts to the beneficiary to show by a preponderance of the evidence that undue influence was not exercised.

Question 26

How are beneficiaries who exerted undue influence treated? (T)

Answer 26

A beneficiary shown to have exerted undue influence is treated as having predeceased the testator to the extent that the gift to her exceeds her intestate share of the estate.

Question 27

Under the majority view, what are the elements of undue influence? (T)

Answer 27

Under the majority view, the undue influence doctrine contains the following elements, all of which must be shown: i) Susceptibility (the testator was susceptible to being influenced); ii) Motive or predisposition (the influencer had reason to benefit); iii) Opportunity (the influencer had the opportunity to influence); and iv) Causation (the influencer caused an unnatural result).

Question 28

What are the elements of fraud? (T)

Answer 28

The misrepresentation must be made by the beneficiary with both: i) The intent to deceive the testator; and ii) The purpose of influencing the testamentary disposition. The result must be a will that would not have been executed but for the fraud.

Question 29

What is fraud in the inducement? (T)

Answer 29

Fraud in the inducement is a knowingly false representation that causes the testator to make a different will than he would have otherwise made.

Question 30

A fraudulently procured inheritance or bequest is invalid only if what? (T)

Answer 30

A fraudulently procured inheritance or bequest is invalid only if the testator would not have left the inheritance or made the bequest had he known the facts.

Question 31

What is fraud in the execution? (T)

Answer 31

Fraud in the execution (or “fraud in the factum”) is fraud concerning the nature of the instrument or its contents.

Question 32

A person who objects to a will based on fraud or undue influence must contest what? (T)

Answer 32

A person who objects to a will based on fraud or undue influence must contest its probate. The will may be partially probated if the fraud or undue influence goes only to certain provisions.

Question 33

What is a no-contest clause? (T)

Answer 33

A no-contest clause (i.e., in terrorem clause) is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he sues.

Question 34

Are no-contest clauses unenforceable against a claimant if the claimant had probable cause to contest? (T)

Answer 34

Yes. Most states and the UPC have found that no-contest clauses are unenforceable against a claimant if the claimant had probable cause to contest. If the claim is spurious, then the clause is enforceable.

Question 35

What are Mortmain Acts? (T)

Answer 35

In some jurisdictions, the proportion of the estate that a testator who is survived by a spouse, parent, or child may leave to charity is statutorily limited. In other jurisdictions, a will that bequeaths property to charity may be required to have been executed more than a specified length of time before the testator’s death to be effective.

Question 36

Will provisions imposing a forfeiture of a gift if the beneficiary gets married are deemed valid or invalid? (T)

Answer 36

Will provisions imposing a forfeiture of a gift if the beneficiary gets married are invalid as against public policy.

Question 37

Are partial restraints on marriage generally valid? (T)

Answer 37

Yes. Ex: A provision conditioning a gift on the beneficiary’s not marrying a person outside his own religious group has been held to be valid.

Question 38

Under the UPC, where is validity determined to be? (T)

Answer 38

Under the UPC, validity is determined under the law of the place where (1) the will was executed or (2) the testator is domiciled, has a residence, or is a national at the time of death. An instrument that is executed in accordance with either alternative is a valid will.

Question 39

Under the UPC, may testator's have choice of law clauses in their wills? (T)

Answer 39

Yes. Under the UPC, the meaning and effect of a will or instrument that governs the disposition of property at death is determined by the law of the state selected in the instrument unless the application of that law contradicts the public policy of the state enforcing the instrument. This may be the case concerning a surviving spouse’s elective share or exempt property.