Plain Meaning and Ambiguities/Capacity and contests

Question 1

Are facts and circumstances admissible evidence ?

Answer 1

Yes- if the will is ambiguous

Question 2

Facts and circumstances evidence

Answer 2

1. always admissible to help explain the meaning of words used by the testator
2. Virginia DOES not distinguish between latent and patent ambiguity
3. Includes just about every type of relevant evidence other than statements by a testator as to his testamentary intentions

Question 3

When are statements of testamentary intent admissible ?

Answer 3

Only to solve an equivocation

Question 4

Clear and convincing evidence of testator’s intent

Answer 4

With clear and convincing evidence that both the decedent’s intent and the terms of the will were affected by a mistake of fact or law, a court may reform the terms of the decedent’s will, even if unambious

Question 5

Repugnancy doctrine

Answer 5

A life estate coupled with absolute power to consume, assign, or dispose of property makes an interest a fee simple; any subsequent remainder void for uncertainty

Question 6

Who has standing to contest a will ?

Answer 6

Must be an interested person with a legally ascertainable pecuniary interest dependent on the will being probated or set aside (spouses, heirs, and beneficiaries under prior wills)

Must have more than a mere expectancy

Question 7

Mental capacity

Answer 7

Must be 18 years or older with mental capacity to write a will

Question 8

Four prong test - apply prongs at time of execution of the will

Answer 8

1. Will proponents must prove mental competence by a preponderance of the evidence
2. The testator need not retain the full force of intellect, may even be legally incompetent to transact other business
3. The Testamentary CAPACITY must be sufficient at the testator executed his will. Meaning that he was capable of recollecting
   a. his property,
   b. the natural objects of his bounty, and
   c. their claims upon him, and
   d. he knew the business about which we was engaged and how he wished to dispose of his property

Question 9

Insane delusion

Answer 9

An insane delusion is an irrational, persistent belief in an imaginary state of facts

It does NOT affect the capacity to execute a valid will unless the will was the product of insane delusion

Question 10

What is undue influence ?

Answer 10

Measures taken that the testator could not resist, controlled the testator’s volition, and that induced the testator to act as he would not otherwise act (look for special type of relationship maybe)

Question 11

Proving undue influence

Answer 11

Contestants shift the burden of production to the proponent by showing:

1. Testator suffered from a weakness of mind when the will was made
2. Testator named a beneficiary in a relationship of confidence or dependence, and
3. Testator previously expressed an intention to make a contrary disposition
4. Burden of persuasion remains with contestants

Question 12

Fraud

Answer 12

A will or procured by fraud if
1. The wrongdoer misrepresented a material fact to the testator, and

2. The wrongdoer intended to deceive testator to influence the the testator to make a disposition she would not have otherwise made

Question 13

Presumption of fraud

Answer 13

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 the burden of persuasion, to the will proponents

Question 14

Public policy limits

Answer 14

Va strikes conditions that infringe upon the religious beliefs of beneficiaries and those that unreasonably limit the ability of beneficiaries to marry (saying don’t marry x is fine) (saying do not marry at all or mary x violates public policy

Question 15

No contest provisions

Answer 15

Are generally enforced