Will Contests

Question 1

In general, grounds for a will to be denied admission to probate are:

Answer 1

1. Defective execution;
2. Lack of testamentary capacity;
3. Undue influence;
4. Fraud; or
5. Mistake.

Question 2

A person has standing to contest a will if they have…

Answer 2

a pecuniary interest that will be impaired by the will’s admission to probate.

Question 3

The burden of proving capacity is on the…

Answer 3

will proponent (the one offering the will to probate).

Question 4

Proof that a will was validly executed raises a…

Answer 4

presumption of capacity.

Question 5

Once the presumption of capacity exists, the will contestant…

Answer 5

has the burden of going forward with evidence to overcome it.

Question 6

To establish undue influence, the contestants must prove:

Answer 6

1. The existence and exertion of influence;
2. that overpowered the testator’s mind and fee will; and
3. that produced a will (or gift in a will) that would not have been made but for such influence.

Question 7

A presumption of undue influence arises if it is proved:

Answer 7

by clear and convincing evidence that the testator:

1. suffered from weakness of mind;
2. named a beneficiary with whom the testator had a relationship of confidence or dependence; and
3. previously had expressed a contrary intention or no intention regarding the disposition of their will.

Question 8

Even if there is no presumption of undue influence, a presumption of fraud arises if…

Answer 8

the will was drafted by a person in a confidential relationship with the testator, and there are suspicious circumstances.

Question 9

The elements of fraud are:

Answer 9

1. Material misrepresentations by the speaker;
2. Made with the intent to deceive;
3. The other party’s ignorance of the falsity; and
4. Reliance on the misrepresentations that induced the party to act to their injury.

Question 10

If execution of a will is the result of fraud…

Answer 10

the will is invalid.

Question 11

A court may reform a will or codicil to conform to the decedent’s intention if it is proved by clear and convincing evidence that…

Answer 11

both the decedent’s intent and the will’s terms were affected by a mistake of fact or law, whether in expression or in inducement.

Question 12

(TRUE/FALSE): Extrinsic evidence is admissible to show that the testator was unaware of the nature of the instrument they signed.

Answer 12

TRUE

Question 13

Traditionally, no relief would be granted if the mistake involves the reasons a testator made their will in a particular way and the mistake was not fraudulently induced, however, in Virginia

Answer 13

the will can be reformed if it is proven that the will or its terms were induced by mistake.

Question 14

Ambiguity in a will is found when terms are…

Answer 14

reasonably susceptible to alternate meanings.

Question 15

A _____ ambiguity exists when the will’s language is clear on its face in describing a beneficiary or property, but results in a misconstruction when applied.

Answer 15

latent

[e.g., I give my watch to my brother, Sara].

Question 16

A _____ ambiguity exists when the uncertainty appears on the face of the will.

Answer 16

patent

[e.g., I leave 25,00 to Bob].

Question 17

What type of evidence is admissible to cure a latent ambiguity?

Answer 17

Both facts and circumstances, along with the testator’s declarations of intent.

Question 18

What type of evidence is admissible to cure a patent ambiguity?

Answer 18

Facts and circumstances, but typically not the testator’s declarations.

Question 19

When will a testator’s declarations be admissible to cure a patent ambiguity?

Answer 19

ONLY if there is an equivocation.

[where words describe two or more persons or things equally well]

Question 20

A ______ clause provides that any person who contests a will forfeits their interests under the will.

Answer 20

no-contest

Question 21

Does a request for interpretation of an ambiguous term in a will constitute a challenge of the will for purposes of a no-contest clause?

Answer 21

No.