Wills 1 Flashcards
who may execute a will? 3 requirements
ï Who May Execute a Will/Codicil? (likely essay question)
o general rule: in order to execute a will, you must be
(1) 18y/o at the time of execution, AND
(2) of “sound mind” at the time of execution
ï must be sufficiently sound to enable him to know and understand the consequence of his act, and testator is not rendered incapable of making a will by mere physical weakness or disease, old age, blunt perception, or failing mind and memory, if his mind is sufficiently sound to enable him to know and understand what he is doing
o **focus on mental capability, not knowledge (goal is to protect freedom of disposition and autonomy)
ï same level as a revocable trust
ï contracts, deeds, and irrevocable trusts have a higher standard (so if you meet one of these, you are competent to make a will)
o i.e. it is possible that a legally incompetent person can execute a valid will (b/c capacity required for contracts is a higher bar)
(3) not suffering from undue influence, fraud, or duress
ï **a will is void if its execution is procured this way – but if only part of a will was so procured, and it can be separate from the rest of the will, only that part is void and the remainder of the will is valid
What are the differences in requirements for executing a codicil (as opposed to a will)?
no differences
what is a will contest? who has standing?
o will contest: a properly executed will was nevertheless not voluntary because of incap, undue influence, duress, or fraud
who has standing:
• those who would take under the intestate laws if the challenged will is invalidated
• those who would take under a prior will if the challenged will is invalidated (unless bequests in prior wills were de minimis and insufficient to confer standing)
what is the alternative to a will contest when there is no valid will?
if D was prevented from making a will in the first place, there can be no contest, and the expectant beneficiary must instead pursue the equitable remedy of a constructive trust in an action for restitution
• typically, if A would have received D’s estate, but the will was never executed/properly amended because of B’s wrongdoing (and the will now says B and C collect), A can get a constructive trust against both B and C’s portions
o reasoning: because C was also ultimately unjustly enriched
how does the dead man’s act apply to will contest?
TN Dead Man’s Act does not apply to will contests
• so an interested party can testify about communications/transactions with D
how does an in terrorem clause affect a will contest?
no contest (in terrorem) clause: deprives an unsuccessful contestant of her bequest under the challenged will
• “if you contest the validity of my will and fail, you lose what you would have gotten as stated in my will”
• **will be subject to the exception that where the contest or other opposition of the beneficiary is made in good faith and with probable cause, such clause is not binding and a forfeiture will not result under such circumstances (rule is the same for trusts)
what is ante mortem probate? who can assert?
o ante-mortem probate (living probate): a testator may file a complaint with the probate court to determine before his death that his will is valid, subject only to subsequent revocation or modification of the will
**this right is personal to the testator (cannot be exercised by a guardian/agent)
test and burden for showing mental capacity
the test – to be competent to make a will, the testator must be capable of knowing and understanding in a general way:
• (1) the nature and extent of his property
• (2) the natural objects of his bounty (heirs apparent),
• (3) the disposition that he is making of that ppty, AND
• (4) must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of his ppty
the burden of proving incap rests on the person challenging the validity of the will
• presumption is in favor of sanity
• **testamentary capacity cannot be destroyed by showing a few isolated acts – “departures from the normal/idiosyncrasies” – unless they directly bear upon and have influence the testamentary act
special exceptions to mental capacity
ï insane delusion: a person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected all/part of the will
o refers to a false conception of reality
o **if there is any evidence to support the testator’s delusion, it is not insane
**this is a way to get around proving general mental incap by saying “okay, she is sane, bus she was Insane at this one key time!”
ï lucid interval: a person who lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him competent
o a lucid interval is not merely a cooler moment, an abandonment of pain/violence, or a mind relieved from excessive pressure. it is an interval in which the mind, having thrown off the disease, has recovered from its general habit
definition, BOP, and elements of Undue Influence
definition: where there has been a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is, in truth, the act of the one who procures the result
BOP: contestant(s), preponderance of the evidence standard
Elements:
• (1) influence was exerted on the testator,
• (2) the effect of the influence was to overpower the mind and free will of the testator, AND
• (3) the product of the influence was a will that would not have been executed but for the influence
What is the presumption for UE when there is a confidential relationship? How can one rebut this presumption?
presumption: the existence of a confidential relationship, together with evidence that the beneficiary had a role in procuring the will (suspicious circumstances), triggers a presumption of UE
• **so the burden shifts to ∆
• rebuttal: can be overcome only by clear and convincing evidence of the fairness of the transaction
• fraud and duress do not shift the burden this way, so UE is most commonly relied on!
fraud definition and two types? How does this differ from UE?
definition: testator is deceived by a misrepresentation and does that which the testator would not have done had the misrepresentation not been made
types:
• fraud in the execution (factum): when a person intentionally misrepresents the character/contents of the instrument signed by testator, which does not in fact carry out the testator’s intent
• fraud in the inducement (treaty): when a misrep causes the testator to execute/revoke a will, refrain from executing/revoking a will, or include particular provisions in the wrongdoer’s favor
o **different from a UE claim: with fraud, the testator retains her free agency, and freely makes a new estate plan, but does so as a result of having been misled…in a case of UE, the testator makes a new estate plan because of influence that overcomes the testator’s free will
these usually get bundled together anyway because UE shifts the burden and is easier to rely on
definition of duress
definition: when a person has threatened to perform or did perform a wrongful act that
• (1) coerced the testator into making a will or bequest that the testator would not otherwise have made, or
• (2) prevented the testator from making a will or bequest that the testator otherwise would have made
governing rule for will formalities
o governing rule: stay strict to the formalities because your best witness is dead and technicalities mean a lot in this area of the law
generally, courts are willing to risk a false negative (i.e. not allowing an otherwise valid will into probate) in order to weed out false positives (i.e. wills procured by UE, fraud, duress)
3 elements of a formal will
(1) a writing
- can be handwriting
(2) signed by T
- can be any written mark made with the intent that it serve as a signature
- need not sign at end
(3) attested by 2 witnesses
- T must acknowledge this as his will and acknowledge his signature
- Ws must sign in presence of each other AND T (line of sight rule)
- generally any competent witness may attest a will
