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Flashcards in Contesting Will: Mistake Deck (11)
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1
Q

With regards to contesting a will, what are the three kinds of mistake?

A
  1. Mistake in Execution
  2. Mistake in Inducement
  3. Mistake as to Contents
2
Q

What is mistake in execution?

What rules apply?

A

In general –> mistake in execution may prevent T from having the requisite testamentary intent

Extrinsic evidence –> IS admissible to show that T was unaware of the nature of the instrument he signed
EXAMPLE –>
1. he thought it was a POA
2. he thought he was signing his own will, but he was actually signing his spouse’s

EFFECT of mistake –> entire will may be invalidated

3
Q

What is mistake in inducement?

What rules apply?

A

No relief UNLESS:
1. the mistake AND
2. the disposition that T would have made BUT FOR the mistake
..BOTH appear on the face of the will

HOWEVER –> extrinsic evidence IS admissible to show that he mistakenly believed his child was dead, or he had no child

4
Q

What is mistake in contents?

What rules apply?

A

An unambiguous will may be reformed to conform w T’s intent if:

  • CLEAR AND CONVINCING evidence establishes that the will contains a mistake in T’s expression of intent at the time will was drafted; AND
  • also establishes T’s actual SPECIFIC INTENT at the time the will was drafted.
5
Q

What happens if a provision is included or omitted by mistake?

A

Extrinsic evidence IS admissible to establish BOTH:

  1. the mistake; AND
  2. T’s actual intent

The terms of the will are considered together w extrinsic evidence to determine whether there is CLEAR and CONVINCING evidence of an intent to make (or not to make) a gift - and thus whether reformation of will is warranted

6
Q

What is the effect of a disinheritance clause with regards to an issue of mistake as to contents?

A

May provide evidence of T’s intent

7
Q

Are rules of construction used in a reformation action?

A

No, not if extrinsic evidence is available to supply terms

8
Q

What is CA’s rule w regards to ambiguities?

A

CA admits extrinsic evidence to:

  1. establish that a will is ambiguous; AND
  2. to clarify the ambiguity
9
Q

What is a “no-contest clause”?

A

“no-contest clause” - states that if someone contests the will, they forfeit their right

10
Q

In CA, when may a no-contest clause apply?

A
  1. a DIRECT CONTEST brought without probable cause;
  2. creditor’s claim
  3. claim that T does NOT OWN THE PROPERTY and has no right to transfer it UNLESS clause specifically expressly provides that it will still apply.
    NOTE –> for #3, if clause expressly provides that it will still apply, then it will apply EVEN IF there is good cause
11
Q

What is a “direct contest”?

A

Contest that alleges the invalidity of a the instrument or terms, based on:

  1. forgery
  2. lack of due execution
  3. lack of capacity
  4. manace, duress, undue influence
  5. revocation
  6. disqualification of beneficiary as interested witness or drafter

NOTE –> a no-contest clause will NOT be applied if there is a direct contest based on probable cause