Contesting Will: Mistake

Question 1

With regards to contesting a will, what are the three kinds of mistake?

Answer 1

1. Mistake in Execution
2. Mistake in Inducement
3. Mistake as to Contents

Question 2

What is mistake in execution?

What rules apply?

Answer 2

In general –> mistake in execution may prevent T from having the requisite testamentary intent

Extrinsic evidence –> IS admissible to show that T was unaware of the nature of the instrument he signed
EXAMPLE –>
1. he thought it was a POA
2. he thought he was signing his own will, but he was actually signing his spouse’s

EFFECT of mistake –> entire will may be invalidated

Question 3

What is mistake in inducement?

What rules apply?

Answer 3

No relief UNLESS:
1. the mistake AND
2. the disposition that T would have made BUT FOR the mistake
..BOTH appear on the face of the will

HOWEVER –> extrinsic evidence IS admissible to show that he mistakenly believed his child was dead, or he had no child

Question 4

What is mistake in contents?

What rules apply?

Answer 4

An unambiguous will may be reformed to conform w T’s intent if:

• CLEAR AND CONVINCING evidence establishes that the will contains a mistake in T’s expression of intent at the time will was drafted; AND
• also establishes T’s actual SPECIFIC INTENT at the time the will was drafted.

Question 5

What happens if a provision is included or omitted by mistake?

Answer 5

Extrinsic evidence IS admissible to establish BOTH:

1. the mistake; AND
2. T’s actual intent

The terms of the will are considered together w extrinsic evidence to determine whether there is CLEAR and CONVINCING evidence of an intent to make (or not to make) a gift - and thus whether reformation of will is warranted

Question 6

What is the effect of a disinheritance clause with regards to an issue of mistake as to contents?

Answer 6

May provide evidence of T’s intent

Question 7

Are rules of construction used in a reformation action?

Answer 7

No, not if extrinsic evidence is available to supply terms

Question 8

What is CA’s rule w regards to ambiguities?

Answer 8

CA admits extrinsic evidence to:

1. establish that a will is ambiguous; AND
2. to clarify the ambiguity

Question 9

What is a “no-contest clause”?

Answer 9

“no-contest clause” - states that if someone contests the will, they forfeit their right

Question 10

In CA, when may a no-contest clause apply?

Answer 10

1. a DIRECT CONTEST brought without probable cause;
2. creditor’s claim
3. claim that T does NOT OWN THE PROPERTY and has no right to transfer it UNLESS clause specifically expressly provides that it will still apply.
   NOTE –> for #3, if clause expressly provides that it will still apply, then it will apply EVEN IF there is good cause

Question 11

What is a “direct contest”?

Answer 11

Contest that alleges the invalidity of a the instrument or terms, based on:

1. forgery
2. lack of due execution
3. lack of capacity
4. manace, duress, undue influence
5. revocation
6. disqualification of beneficiary as interested witness or drafter

NOTE –> a no-contest clause will NOT be applied if there is a direct contest based on probable cause