Will Contests

Question 1

Who has standing to challenge a will?

Answer 1

An interested party. ie. someone who will take a financial benefit under the will or someone who would take under intestate succession but does not take under the will.

Question 2

What is the time period to file a will contest?

Answer 2

6 months.

Question 3

What is the basic rule of testamentary capacity?

Answer 3

• 18 years old, and,

- of sound mind

Question 4

What is the threshold issue for a challenger of a will?

Answer 4

The testator lacked the requisite mental capacity at the time of the execution of the will.

Question 5

What questions will a court ask when analyzing whether a testator had the requisite mental capacity at the time of the execution of a will?

Answer 5

Did the testator have the ABILITY to know:

• the nature of the act
• nature and character of the property
• natural objects of his bounty
• plan of the attempted disposition

Question 6

What is an insane delusion for a testator?

Answer 6

A false belief that a testator adheres to in spite of all reason and evidence to the contrary:

• Objective test - measured against a rational person in testator’s position.
• Causation - insane delusion must be “but for” cause of the testamentary disposition.

Question 7

How do you prove an undue influence?

Answer 7

1. Beneficiary received a substantial benefit.
2. Beneficiary had a confidential relationship with the testator.
3. testator had a weakened disposition at the time of execution.

Focus on causation

Question 8

What happens if a challenger can show the elements of undue influence?

Answer 8

Then the burden shifts to the challenger to show by a preponderance of the evidence that there was no undue influence.

Question 9

What are the elements of proving fraud?

Answer 9

• intent to deceive

- for the purpose of influencing the testamentary disposition

Question 10

What is fraud in the inducement?

Answer 10

Misrepresentation that causes the testator to make a different will than the testator would have otherwise made.

Question 11

What is fraud in the execution?

Answer 11

Misrepresentation as to the character or contents of the will.

Question 12

What is the remedy for fraud?

Answer 12

Constructive Trust.

Question 13

What is a forfeiture clause?

Answer 13

A clause that requires a beneficiary not to sue about his share or else he will lose his share.

Question 14

What is the majority/UPC opinion on Forfeiture clauses?

Answer 14

they are unenforceable if the beneficiary has cause to challenge a will.