7. Will Contests

Question 1

Who has standing to contest a will?

Answer 1

1. Heirs — if will invalid, testator’s estate passes by intestacy
2. Beneficiaries of prior wills — if testator’s will invalid, property then passes under testator’s prior will

Question 2

Who bears the burden of proof in a will contest?

Answer 2

The contestant

Question 3

Will contest grounds:

Answer 3

1. Failure to Meet Elements of a Valid Will
2. Insane Delusions
3. Undue Influence
4. Duress
5. Mistake

Question 4

What is the definition of an insane delusion?

Answer 4

A persistent belief in supposed facts that are against all evidence, probability, and control.

Question 5

What is required for an insane delusion to destroy a testator’s capacity?

Answer 5

Insane delusion destroys capacity only if there is connection between the insane delusion and property disposition.

Question 6

Elements of undue influence:

Answer 6

1. The influence must have existed and been exerted.
2. Overpowers the testator’s mind and will.
3. Causation - Testator must execute a will which he would not have executed but for the influence.

Question 7

What circumstantial evidence will a court consider when deciding whether undue influence existed?

Answer 7

1. Unnatural disposition, e.g., cutting out close family
2. Opportunity, e.g., access to testator
3. Confidential or fiduciary relationship between parties
4. Ability of testator to resist (people are very different)
5. Beneficiary involved with drafting or execution of will

Question 8

A will contestant can satisfy the burden of proof by an inference of undue influence if:

Answer 8

1. The will makes a gift to a person in a confidential relationship, and
2. This person was active in preparing the will.

Question 9

What happens if the drafting attorney is a beneficiary?

Answer 9

Even if no objection is filed, the Surrogate’s Court automatically inquires into whether a bequest to the drafting attorney was voluntarily made (known as a “Putnam Scrutiny”).

Question 10

What happens if the drafting attorney is the executor?

Answer 10

1. A drafting attorney who is named as the executor of the testator’s estate must give written notice that:
   a. Any person can be named as the executor, not just an attorney,
   b. The executor receives a statutory commission (a percentage set by statute), and
   c. The attorney will also be entitled to legal fees for representing the estate.
2. The testator must sign the written disclosure in the presence of two witnesses.

Question 11

If the attorney fails to comply with the statute regarding informing the testator about an attorney acting as an executor:

Answer 11

The attorney receives only half of the statutory commissions.

Question 12

Duress

Answer 12

Like undue influence but connotes more violent conduct, e.g., under threat of physical harm.

Question 13

Mistake

Answer 13

Testator’s error when there was no evil conduct of someone causing the mistake to arise, i.e., no fraud, undue influence, etc.

Question 14

Mistake in the Factum/Execution

Answer 14

Testator is in error regarding identity or contents of instrument and thus lacked testamentary intent.

Question 15

Mistake in the Inducement

Answer 15

Testator is mistaken as to some extrinsic fact and makes will based on that erroneous fact.

Question 16

What remedy is available for a mistake in the inducement?

Answer 16

No remedy is generally available — courts have no right to vary or modify the terms of a will or to reform it on grounds of mistake in the absence of evil conduct.

Question 17

What is an in terrarium, no-contest, or forfeiture provision?

Answer 17

If beneficiary contests will and loses, beneficiary forfeits gift.

Question 18

Are in terrorem clauses valid in New York?

Answer 18

Unlike most states, New York enforces in terrorem clauses even if the contestant was in good faith and had probable cause to file the contest.

Question 19

In what situations will the court not enforce an in terrorem clause?

Answer 19

1. Forgery
2. Claim that will revoked a later will (This exception does not apply if the will contest is on the ground that the testator revoked the will by physical act.)
3. Contest filed on behalf of a minor or incompetent person
4. Will construction action
5. Objection to the jurisdiction of the court

Question 20

Safe Harbor Provision

Answer 20

A person who is considering contesting a will that contains a no contest clause may examine in discovery the following individuals without triggering the clause:

1. Person who prepared the will.
2. The attesting witnesses.
3. The will proponents.
4. The nominated executors.