Will Contests

Question 1

Timing and Notice

Answer 1

• States vary about how quickly a will contest must be filled.
• All legatees under the will and all intestate heirs are necessary parties and are entitled to notice.

Question 2

Standing

Answer 2

• Only interested parties have standing to contest a will.
• Interested Party - Someone whose interests would be adversely affected by the admission of the will.
• Interested parties includes heirs, spouses, descendants, siblings, etc.
• In some states, beneficiaries of prior wills must be included.
• Creditors, executors, and testamentary trustees are NOT interested parties.

Question 3

Burden of Proof

Answer 3

The party contesting the will (the will contestant) has the burden to prove that the will is invalid.

Question 4

Grounds For Contest – In General

Answer 4

A will contest challenges the validity of a document offered for probate.

• Note: If only a portion of the will is found to be invalid, then only that part is void and the remainder is still given effect.

Grounds for challenge:
1. Defective Execution
2. Revocation
3. Lack of testamentary capacity (age + mental capacity)
4. Lack of testamentary intent
5. Undue influence or duress
6. Fraud
7. Mistake

Question 5

Insane Delusion

Answer 5

Insane Delusion - A belief in facts that do not exist and that no rational person would believe existed.

• Insane delusion destorys testamentary capacity ONLY IF there is a nexus between the insane delusion and the property disposition.
• Insane delusion can invalidate the entire will or just a particular gift.

Question 6

Undue Influence

Answer 6

To establish undue influence, the contestant must establish:
1. the influence existed and was exerted
2. the effect of the influence was to overpower the mind and free will of the testator; AND
3. the resulting will would not have been executed but for the influence.

The free will of the testator must be shown to be destroyed.

Question 7

Evidence That is Enough For Undue Influence

Answer 7

Factors that the court considers when determining undue influence:
1. unnatural dispositions (i.e. cutting out close family);
2. opportunity or access to testator;
3. confidential or fiduciary relationship between parties
4. the ability of the testator to resist
5. the beneficiary’s involvement with drafting or execution

Note: None of them or even all of them are conclusive that undue influence existed.

Question 8

Evidence That is NOT Enough For Undue Influence

Answer 8

• Mere opportunity to influence the testator
• The susceptibility of the testator to influence due to age or poor health
• An unnatural disposition favoring some of the testator’s relatives of others.

These factors ALONE are not enough to establish undue influence.

Question 9

Confidential Relationships & Undue Influence

Answer 9

There is a presumption of undue influence when (1) there is a confidentail relationship between the testator and a beneficiary AND (2) that beneficiary was active in procuring, drafting, or executing the will.

Note: Some states also require the provisions of the will to appear to be unnatural and favor the person who allegedly exercised undue influence.

• A presumption of undue influence does not arise between spouses UNLESS spouse exerted influence over the testator in such a manner that it (1) overpowered the free will of the testator and (2) resulted in a disposition reflecting the desires of the non-testator spouse.
• If the attorney who drafted the will is also a beneficiary, many states VOID the gift unless the testator and the attorney are closely related.

Question 10

Duress

Answer 10

• Duress is a form of undue influence but connotes violent conduct.
• Look for threats of physical harm.

Question 11

Fraud

Answer 11

Fraud requires that the testator have been willfully decieved as to:
1. character or content of the instrument;
2. extrinsic facts that would induce the will or a particular disposition;
3. facts material to a disposition

Elements of Fraud:
* False representation made to the testator;

• Knowledge of falseity by person making the statement;
• Testator reasonably believed statement;
• Statement caused testator to execute a will that the testator would not have otherwise executed.

Question 12

Fraud in the Execution

Answer 12

Fraud in the execution = there is a misrepresentation as to the identity or contents of the instrument.

• Testator does not know what is in the will.
• Because T does not know what is in the will, T does not have testamentary intent. Therefore, will is invalid.

Question 13

Fraud in the Inducement

Answer 13

The testator knows they are executing a will and what it contains, BUT testator is deceived as to some extrinsic fact and makes the will or gift based on that fact.

Question 14

Mistake in Execution

Answer 14

Mistake - An error that is not caused by evil conduct.

**Mistake in the execution: **the testator is in error regarding the identity or contents of the instrument and so lacks the required testamentary intent.

• Extrinsic evidence is admissible to show that a testator did not know that the instrument they were signing was a will.
• It’s testamentary intent that is at issue here.

Example: Husband and wife accidentally sign each other’s wills. Technically the wills are invalid because there was a last of testamentary intent.

• Some courts deny relief; some courts will grant relief where the nature of the mistake is obvious.

Question 15

Mistake in Inducement

Answer 15

• Where the testator is mistaken as to some extrinsic fact and makes their will based on the erroneous fact.
• If the mistake involves reasons a testator made their will a particular way and the mistake was not fraudlently induced, court will NOT grant relief.
• Relief might be granted IF mistaken inducement appears on the face of the will.

UPC: provides relief if a child was omitted because the testator mistakenly believed the child was dead.

Question 16

Reformation for Mistake (UPC)

Answer 16

A court may reform a will even if the will is unambiguous, to conform to the testator’s intent if it is proven by CLEAR AND CONVINCING evidence that the testator’s intent and the terms of the will were affected by a mistake of fact or law.

Question 17

No-Contest Clauses

Answer 17

A clause in a will providing that a beneficiary forfeits their interest in the estate if they contest the will and lose.

Question 18

No-Contest Clauses - Majority Rule

Answer 18

Under UPC and most states, a no-contest clause is valid and will be enforced UNLESS beneficiary had probable cause for bringing the contest.

Question 19

No-Contest Clauses - Minority Rule

Answer 19

Minority of states give a no-contest clause full effect regardless of whether there was probable cause for challenging the will.