Module 4 & 5: Wills Capacity, Contests, and Construction Flashcards
(23 cards)
Why require mental capacity?
To protect testator, society, beneficiaries
Maintain legitimacy of the legal process
Sanity is necessary for full personhood, therefore necessary for conveyance of estate
(TX specifically requires sound mind and 18 years of age)
Test for testator capacity
Testator must know:
1) nature and extent of property
2) persons who are the natural objects of their bounty
3) Disposition plan for the testator’s property
4) How these three things interact
Insane delusion that affects will disposition
Refusal to believe something is true or persistence in believing something is false despite all being presented with evidence to the contrary
- fact believed or not believed MUST affect the disposition of the will to challenge
court can choose to strike just that part of the will
Undue influence of will
where testator is influenced to change their will in a way that does not reflect their true wishes
- difficult to prove
- burden of proof is on the contestant
- that part of the will likely struck if found
Factors to consider when assessing undue influence
1) fiduciary or confidential relationship between influencing party and the testator
2) beneficiary has the motive and/or opportunity to influence
3) testator is susceptible or weak
4) the estate falls to an unnatural disposition
5) beneficiary active in the procurement of the will
6) previous wills or patterns of disposition
No contest clause in will
in terrorem clause
beneficiary forfeits bequest if they contest the will
- will NOT be enforced if suit is brought in good faith and will probable cause (TX and UPC view)*
Two most contested issues in wills
Capacity or undue influence
Methods of avoiding a will contest
letter to an attorney
video conference with heirs
family meeting
medical or psych exam
care with execution and construction
no contest clause
intervivos trust or gift
or mediation after the death of testator
Will fraud
intentional misrepresentation of a material fact by the beneficiary with the purpose of affecting the will that induces justifiable reliance by the testator, and that reliance does in fact affect the will
- in the inducement: knows they are signing a will but not the contents
- in the execution: testator does not understand they are signing a will
Admission of extrinsic evidence in will interpretation
general rule: plain meaning of the document is what is taken
exceptions:
1) ambiguities: may admit for latent ambiguity (not visible on the face of the document) but not patent ambiguity (evident on the face of the document)
2) omission
3) personal usage
4) mistake (equivocation or misdescription)
5) circumstances (if needed for intent)
Personal usage exception for extrinsic evidence
testator may refer to someone as something other than their name, so may need to admit to show intent of testator
Omission or gap exception for extrinsic evidence
Leaving only 75% of estate, naming an executor but leaving property to no one, saying to so and so without saying what they get
Mistake exception for extrinsic evidence
- equivocation: leaving something to my niece Alice but I have two nieces named Alice
- misdescription: owns tract 81 but leaves tract 74 in lease instead
Rule for mistake in will
Traditional rule: Court will not fix scrivener or testator error
- exceptions: fraud, duress, undue influence, insane delusion, dependent relative revocation, striking misdescription
R3P (2003): permits the reformation of mistakes if there is clear and convincing evidence of mistake and what the grantor’s intention actually was
UPC: May reform if clear and convincing evidence of intent
TX: allows for court reformation
- only personal representative may petition for reformation
- must petition within 4 years of will admitted to probate
- allowed changes:
1) amend directions to personal representatives
2) efficiency
3) tax objectives
4) maintaining government benefits for beneficiaries
5) correct scrivener’s (only if clear and convincing evidence of intent)
4 types of gifts in wills
general: money gifts
specific: particular items of property
demonstrative: money gifts to be paid out of a particular account
residue: what is left (usually goes to the main beneficiary)
Lapse in estate
beneficiary dies before the testator but after the will is executed
- at common law, the gift fails
- in the modern trend, statute may provide for other avenues
Where the types of gifts lapse into
general, specific, demonstrative lapse into the residue
when there is a lapse in the residue:
- common law: no residue of the residue, passes via intestacy
- modern trend: passes to other residue holders, if any, and then via intestacy (TX and majority)
Where the gift is simply void/invalid, not a lapse
1) beneficiary is dead at will execution
2) gift to an animal
3) disclaim
4) purging statute of an interested witness
5) divorce
6) testator murdered by beneficiary
antilapse statute
provides for a substitute gift in certain lapse situations
Lapse of a class gift
- common law: gift to class does not lapse if a class member dies before testator but does pass to other class members
- modern statutes may have other rules
Ademption by Extinction
bequest is no longer a part of the estate
only applied to specific bequests
- not to general, demonstrative, residue
two theories: intent (modern trend, UPC) or identity (traditional view)
Ademption by satisfaction
gift is adeemed by satisfaction if testator gibes the gift to beneficiary during the testator’s lifetime
Exoneration of liens on gifts
- common law: if gift specific property with lien attached, lien is paid off out of the residue of the estate and beneficiary takes free of the lien
- modern trend: beneficiary takes subject to the lien (TX)
testator may indicate which approach they would like followed
