Wills — Testamentary Capacity, Insane Delusion and Undue Influence

Question 1

Mental Capacity to Make a Will Requirements

Answer 1

Successfully establishing lack of mental capacity invalidates the ENTIRE WILL.

To satisfy mental capacity, the testator must be capable of knowing and understanding in a general way:

1. That is making a will;
2. The value of his assets; and;
3. Who is family members are.

M.V.F. Many Valuable Findings

In CA, the testator must be:
1. at least 18 years of age;
2. of sound mind; AND
3. the capacity requirements must be satisfied AT THE TIME WILL WAS MADE.

Question 2

In Re Wright’s Estate

Answer 2

It takes more than just irrational behavior to show a lack of testamentary capacity.

Question 3

Worst Evidence Problem?

Answer 3

In Trusts, the best evidence comes from the testator but they are dead…

Question 4

Wilson v. Lane

Answer 4

Established that the caveator (challenger of the will) bears the burden of proving testamentary capacity.

THE WILL ITSELF CREATES A PRESUMPTION OF TESTAMENTARY CAPACITY.

Question 5

What is Insane Delusion?

Answer 5

Insane delusion, unlike testamentary capacity [which invalidates the entire will], may invalidate just a particular section of the will.

To establish insane delusion:
1. The testator suffered insane delusions; and
2. the insane delusion CAUSED the testator to dispose of the property in that way.

Question 6

What is Undue Influence?

Answer 6

The entire will is ineffective if undue influence is established.

Factors for establishing undue influence:
1. Whether testator is susceptible to undue influence, i.e., age or illness;

2. Whether the beneficiary had an opportunity to exert undue influence over testator;
3. Whether the beneficiary actively participated in exercising undue influence; and
4. Whether the gift was unnatural bequest
   (i.e., a storage beneficiary like testator’s lawyer or fortune teller.)

In summary, you want to establish that the testator was DEPRIVED of her free will and that the will reflects what the WRONGDOER WANTS instead of what the testator wants.

S.O.U.P.

Question 7

Presumptions of undue influence

Answer 7

In CA, a will is presumed to have been created under undue influence if:
The will has a beneficiary of any of the following:
1. the person who drafted the instrument; OR
2. the transcriber of the will who had a fiduciary relationship with the testator
3. a care custodian of the testator, but only if they were a custodian 90 days before or after the will was written.
4. blood relative within 3rd degree of any person described in 1–3.

NOTE: the beneficiary has the burden of proof which they must REBUT with clear and convincing evidence.

Question 8

Exceptions to presumptions of undue influence

Answer 8

1. if ben. is blood relative within 4th degree of transferor;
2. if instrument drafted by blood relative within 4th degree;
3. the transfer qualifies for a tax exemptions;
4. the amount being transferred is less than $5,000;
5. if the instrument was executed outside of CA by a transferor who was not a resident of CA when the instrument was executed.
6. IF AN independent atty counseled the transferor.