Challenges

Question 1

Will challenges are known as

Answer 1

will contests

Question 2

When a will is a product of what, does the will fail to express the testators true intent and should be denied probate

Answer 2

1. undue influence,
2. fraud,
3. or duress

Question 3

If a will is a product of Undue Influence, Fraud, or Duress
Then the will fails to what

Answer 3

express the testators true intent and should be denied probate

Question 4

Person who challenges a will

Answer 4

“Contestant” or “caveator”

Question 5

Person who asserts the wills validity is the

Answer 5

“proponet”

Question 6

Contestant can object to a will on grounds if it

Answer 6

fails to meet the requirement of will validity

Question 7

A will fails to meet the requirement of will validity if

Answer 7

1. not validly executed
2. testator lacked capacity (general or testamentary)

Question 8

Doctrine of undue influence

Answer 8

A situation where someone exerted so much inappropriate influence over the testator that the resulting will expressed the influencers intent and not the testators

Question 9

4 elements of undue influences

Answer 9

1) The testator must be a person suseptible to the influence,
2) The alledged influence must have a oppertunity to exert the influence upon the testator
3) The alledged influencer must have a disposition to be exert the influence
4) There must be testamentary plan or bequest resulting from influence

Question 10

Generally, the burden lies with the —- to create a presumption of undue influence

Answer 10

challenger

Question 11

A challenger creates a presumption of undue influence by showing what 2 things

Answer 11

1) Confidential relationship between the influencer and the decedent existed, AND
2) There were 1 or more suspicious circumstances present

Question 12

Some jurisdictions: if there is a “confidential relationship” with the testator, a

Answer 12

presumption is raised of undue influence that the proponet must then rebute

Question 13

confidential relationship

Answer 13

one which a person relies on and trusts another to make decisions and do what is best for that person

Question 14

A confidential relationship can be

4 types of relationships

Answer 14

1. fiduciary- like an attourney
2. where individual relies on judgement of other like a doctor or religious leader
3. an informal personal relationship between friends or neighbors or family members
4. when two people do not deal with eachother on equal terms either because of overmastering dominance on one side, or weakness, dependance, or justifiable trust, on the other.

Question 15

8 considerations to determine if circumstances are suspicious

prof. said to remember these

Answer 15

1. donor in weakened condition and susceptable
2. extent the person participated in getting the will/will substitute
3. If the donor relies on advice from disinterested advisors
4. If will was made in secracy or haste
5. If fonors attitude had changed because of relationship with person
6. There are discrepancys between new and previous wills
7. There was a continuity of purpose indicating a settled intent in the legislation of his or her property
8. If the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.

Question 16

suspicious circumstances

example of If the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.

Answer 16

If the disposition abruptly and without apparent reason disinherited a faithful and deserving family member

Question 17

confidential relationship between spouses

Answer 17

courts hesitate to use confidential relationship between spouses to trigger presumption of undue influence

Question 18

Two things that needs to be true for testamentary Intent

Answer 18

1. Testator was thinking about distribution of property at death
2. Testator meant for the writing to be a will (not personal notes, not draft, not anything ut a last will)

Question 19

Testamentary intent when dying testate

Answer 19

court will try to give affect to testamentary intent

Question 20

Testamentary intent when dying intestate

Answer 20

presumed intent, actual intent not relevant

Question 21

Statute of frauds: a will disposing of real property…

Answer 21

be in writing, signed by testator and three witnesses

Question 22

4 Functions of having will requirements

Answer 22

1. evidentiary
2. intent
3. prevent fraud
4. cautionary ritual function (knows its serious)

Question 23

4 purposes of will functions

Answer 23

1. protection
2. evidentiary function
3. efficency (serious business)
4. Ritual function (form and structure that people understand)

Question 24

Self proving affidavit prevents the need of

Answer 24

witnesses appearing in court to attest to the validity of their signatures

Question 25

three traditional challenges

Answer 25

1. duress 2. fraud 3. undue influence

Question 26

duress arises when

Answer 26

physical coersion is used to exert influence

Question 27

A donative transfer is produced by duress if the

Answer 27

wrongdoer threatened to perform or did a wrongul act that coerced the doner into making (or failing to make) a donative transfer that the donor would not otherwise have made

Question 28

3 elements of fraud

Answer 28

1. a delibrate misrepresentation 2. made with the intent to induce the disposition 3. resulting in the testator making a disposition she otherwise would not have been made

Question 29

What happens in the case of fraud The testator..

Answer 29

the testator freely makes a new estate plan but does so as a result of having been misled.

Question 30

2 varieties of fraud in the context of wills

Answer 30

1. fraud in the inducement 2. fraud in the execution

Question 31

Fraud in the inducement

Answer 31

Involves a misrepresentation that causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoers favor

Question 32

fraud in the execution

Answer 32

Involves a misrepresentiation about the charater or contents of instument signed by the testator, which does not in fact carry out the testators intent

Question 33

3 elements of Insane delusion

Answer 33

1. Suffers from a belief contrary to reality, 2. refuses to change that belief even when confronted with evidence to the contrary, and 3. disposition is the result of that belief

Question 34

A testator can have delusions and can have a valid will as long as

Answer 34

the beliefs did not cause the dispositions in the will

Question 35

A testator can suffer from insane delusion and still have

Answer 35

testamentary capacity

Question 36

you have testamentary capacity when you know

Answer 36

who your familiy members are and what your estate is

Question 37

Tortious Interference with Inheritance

Answer 37

One who by fraud, duress, or other tortious means intentionally prevents another from recieving from a 3rd person an inheritance or gift that he would have otherwise have recieved is subject to liability to the other for loss of inheritance or gift.

Question 38

Inheritance

Answer 38

any devise or bequest that would otherswise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate sucession

Question 39

Plaintiffs have sucessfully asserted tortious interference with an iheritance where third parties have encouraged testators

Answer 39

1) to revise their wills or trusts, 2) to retitle property, or 3) to change payable on death contract to eliminate heirs, or have interferred with the execution of a will that would leave property to an heir

Question 40

# tortious interference with an iheritance The party challenging the survivors right to the proceeds of the joint account must show

Answer 40

by clear and convincing evidence that the decedent did not intent the survivor to recieve the proceeds of the acocunt without the benefit of a presumption of undue influence

Question 41

# tortious interference with an iheritance Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless

Answer 41

there is clear and convincing evidence of a different intention at the time the account is created

Question 42

What happens when a will if found to be invalid, depends on what two things

Answer 42

1. whether there was a earlier will 2. whether the later invalidated will disposed of the entire estate or was just an amendment (or codicil) of only part of the estate.

Question 43

# A will is found to be invalid If there was no earlier valid will, what happens?

Answer 43

the estate, or the challenged bequest, wll pass under intestancy laws

Question 44

Testamentary freedom

Answer 44

each of us ought to be free to dispose of our private property as we wish

Question 45

# Proof of burden proponet

Answer 45

prove that the will is valid

Question 46

# proof of burden contestant

Answer 46

prove that the will is invalid

Question 47

A constestant shifts burden to the proponet by *proving* what when raising a presumption of undue influence?

Answer 47

1) confidential relationship 2) suspicious circumstances

Question 48

With undue influence between spouses what do you look for?

Answer 48

1. power dynamic 2. suspicious circumstances

Question 49

# Confidential relationship parent/child (and other family ) relationships are not automaically confidential unless

Answer 49

they are relying on them for something

Question 50

A definition of a will includes a codicil and any testamentary instument that:

Answer 50

1. merely appoints an executor 2. revokes or revises another will 3. nominaes a guardian 4. expressly excludes or limits the right of an individual or class to succed to property of the decedent

Question 51

Duress Elements

Answer 51

1. Existance of threats or Coersion 2. Coersion 3. Lack of Free Will

Question 52

Duress element: existance of threats or coersion

Answer 52

threats, force, pressure, and left testator with no reasonable alternative but to comply with demands or person exerting duress

Question 53

Duress element: Coersion

Answer 53

Duress directly caused the testator to make/alter a will, testator wouldnt have done

Question 54

Duress element: Lack of free will

Answer 54

Free will overcome by the duress

Question 55

Duress: not need...

Answer 55

1. to be in phsycial harm 2.not need to be imminent danger

Question 56

Many forms of duress

Answer 56

1. psychological pressure 2. threats of physical harm

Question 57

# Duress Issue turns on if pressure was sufficient to overcome free will

Answer 57

totality of the circumstances, effect of coersion on testators ability to make voluntary decisions ( not necessiarily the nature of the threat itself.)

Question 58

# Duress Nature of pressure- different form undue influence

Answer 58

undue influence is more subtle form of coersion relying on relationship of trust, dependancy, or authority to manipulate control over time

Question 59

# Evidence: Duress showing that

Answer 59

testator was subjected to specific threat or harm

Question 60

# Evidenece: Undue influence showing that

Answer 60

a relationship was exploited to manipulate decisions

Question 61

A situation of undue influeance could esculate to

Answer 61

duress

Question 62

Fraud elements

Answer 62

1. Deliberate misrepresentation 2. Intent to induce the disposition (means on purpose) 3. Resulting in testator making a disposition otherwise wouldn't have made

Question 63

Types of fraud

Answer 63

1. Fraud in the inducement 2. Fraud in the execution

Question 64

Fraud in the inducement

Answer 64

A misrepresentation of something to get them to change estate plan

Question 65

Fraud in the execution

Answer 65

get them to sign something, not telling them that it is a will. (misrep about the document itself)

Question 66

Insane delusion elements

Answer 66

1. suffers from a belief contrary to reality 2. Refuses to chanfe that belief when confronted with evidence to the contrary; 3. Disposition is the result of that belief

Question 67

# Testamentary capacity is when toy know

Answer 67

1. what your doing 2. who your faimily is 3. what your estate is

Question 68

# Insane Delusion Would need to show

Answer 68

that the testator saw evidence that it was wrong and still made the decision

Question 69

Insane delusion is not

Answer 69

a belief that no one questioned him on

Question 70

# Tortious Interference with inheritance can include

Answer 70

other then a will. ex. deed, bank account

Question 71

Tortious Interference with inheritance elements

Answer 71

1. existance of expectancy 2. intentional interference with the expectancy through tortious conduct 3. causation 4. damages

Question 72

will contestants likely assume they will

Answer 72

do better either under intestacy laws or under an earlier will than they will under the will they are contesting.

Question 73

The scenarios most likely to foretell a future will contest include but are not limited to the following:

Answer 73

* A blended family (a second or third marriage with children from either spouse’s prior marriage) * An elderly person who is forgetful, has early stages of dementia or Alzheimer’s, but whom you believe has testamentary capacity * Unequal bequests to people on the same generational line (i.e., siblings) * A history of family discord * One or more siblings bringing a parent in to execute a will when other siblings are not present

Question 74

Express disinheritance provisions

Answer 74

intentionally not leaving anything to someone

Question 75

Express disinheritance provisions needs

Answer 75

evidence of the intent, show that not because of ill will

Question 76

# Incorporation by refrence and republication by codicil a testator may incorperate an extrinsic document into a will provided:

Answer 76

1. the document in existance at the time provided 2. the refrence in the will clearly identifies it or renders it capable of identification by extrinsic proof

Question 77

# Incorporation by refrence and republication by codicil The execution of a codicil has the effect of

Answer 77

republishing the will which it modiefies

Question 78

# Incorporation by refrence and republication by codicil Although an informal document is not in existance when the will refering to it is executed, A later republication of the will by codicil will

Answer 78

satisfy the "existing document" rule and will incorporate it by refrence provided the testamentary instruments sufficiently identify it.

Question 79

# Incorporation by refrence and republication by codicil Identification of informal document

Answer 79

it is enough that the descriptive words and extrinsic circumstances combine to produce a reasonable certainty that the document in question is the one referred to by the testator in the will

Question 80

# Incorporation by refrence and republication by codicil def of an informal document

Answer 80

An extrinsic document referred to in a will

Question 81

# UPC 2-510 incorporation by refrence A writing in existance when a will is executed may be incorperated by refrence if the

Answer 81

language of the will manifests this intent and describes the writing sufficiently to permit its identification

Question 82

UPC 2-510 incorporation by refrence elimininates

Answer 82

the req to refer to the document as being in existance at the time of the wills execution

Question 83

# UPC 2-510 incorporation by refrence Companion doctrine

Answer 83

to incorperation by refrence clled "integration" looks at what pages compromize the will

Question 84

What techniques ensures pages of a will are incorperated

Answer 84

binding or sewing

Question 85

# UPC binding "seperate writings"

Answer 85

recognizes binding seperate writings that 1) lack will formalities 2) dispose soley of tangible personal property regardless of when these writings are prepared and signed

Question 86

UPC 513 Sperate writing ident. devise of certain types tang. pers.prop

Answer 86

* Whether or not the provisions relating to holographic wills apply, * a will may refer to a written statement * or a list to dispose of items of tangible personal property * not otherwise specifically disposed of by the will * other then money

Question 87

# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop To be admissible under this section as evidence of the intended disposition

Answer 87

* the writing must be signed by the testator * and must describe the items * and the describe the devisees * with reasonable certainty

Question 88

# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop the writing may be referred to as

Answer 88

one to be in existance at the time of the testators death or after the execution of the will

Question 89

# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop The writing may be altered

Answer 89

by the testator after its preparation

Question 90

# UPC 513 Sperate writing ident. devise of certain types tang. pers.prop significance of the writing

Answer 90

may be a writing that has no significance apart from its effect on the dispositions made by the will