Who has standing to contest a will? What is BOP?
i. Heirs (those inheriting by intestacy) – bc if invalid, T’s estate passes by intestacy instead of going to will beneficiaries.
ii. Beneficiaries of prior wills—if T’s will is invalid, property then passes under T’s prior will.
b. BOP
i. on the contestant to prove will as valid.
ii. should contest before admitted to probate, when burden is on proponent to show validity
Will contest grounds
Failure to meet elements of a valid will, insane delusions, undue influence, duress, fraud, mistake
Will contest– failure to meet elements of a valid will
i. lack of legal capacity
ii. lack of testamentary capacity (common)
iii. lac of testamentary intent
iv. lack of necessary formalities (common)
Will contest– insane delusions
Contest based on lack of testamentary capacity
a persistent belief opposite all evidence, probability and control.
i. they destroy capacity only if there is a connection b/w connection and property disposition.
ii. I can believe a rando is an alien, but leave all property to wife.
iii. If I think my WIFE is an alien, and I cut her out, there’s a connection. can be set aside.
Will contest- undue influence
1) influence that EXISTS and is asserted 2) that overpower’s T’s mind so the will doesn’t reflect T’s desires 3) causation (T didn’t have the power to resist)
- influence must EXIST and be ASSERTED
- must OVERPOWER T’s mind, so will reflects desires of influencer and not the T’s
- Causation—T wouldn’t have executed but for the influence
ii. Evidence to prove
1. Direct—smoking guns
- Circumstantial influence—
1) unnatural disposition 2) opportunity 3) confidential relationship bw parties 4) beneficiary involved with drafting/ execution/witnessing 4) testator not able to resist
a. Unnatural disposition, cut out your spouse that you love
b. Opportunity—the influencer lives closeby
c. Confidential or fiduciary relationship b/w parties. Family/ friends or attorney client.
If attorney is both drafter and beneficiary–> will remains valid, gift to attorney is gone, unless the attorney/ beneficiary are closely related. Attorney law license can also be in jeapordy.
d. Ability of testator to resist. People have dif ability to resist influene
e. Beneficiary involved with drafting/ execution/ witnessing
f. Mere opportunity is not enough!!! just b/c you were in the room is not enough.
hounding/ badgering ≠ undue influences
Presumption of undue influence if
1) confidential relationship AND 2) beneficiary participated in a significant activity related to execution of the will
Will contest- duress
like undue influence but connotes violent conduct. e.g. under threat of physical harm. Squeezing air tube in hospital room
i. most courts make no distinction, more physical call it duress
Will contest- fraud
Defense based on lack of testamentary capacity
i. Elements of fraud
1) falsehood, 2) knowledge of falsehood by declarant 3) reasonable belief by Testator 4) causation
- false representation made to testator
- knowledge of falsity by person making statement
- T reasonably believed statement
- Caused testator to execute a will testator would not have made but for the misrepresentation.
ii. Types—both destroy testamantory intent
1. Fraud in the Factum/ Execution – testator deceived as to the identity or contents of the instrument. testator didn’t know contents or that it was a will. A lack of destamantory intent. testator would say “I didn’t sign the will” or content is different.
- Fraud in the inducement—
a. T knew that testator was executing a will and knew contents. Deceived as to extrinsic fact and made will based on that fact.
i. For ex son began campaign that daughter used drugs, abused. Forged letters, paid witnesses, intercepted phone calls. Father leaves whole estate to son. Court likely to set aside will based on fraud in inducement.
Will contest- mistake
– different from fraud (evil conduct). No evil conduct in mistake.
i. Types:
1. Mistake in the Factum/ Execution—T is in error re identity or contents of the will
will not valid. must know generally what will says
- Mistake in the inducement—T mistaken re an extrinsic fact and makes will based on that fact, most states will say no remedy. No right to vary a will in the absence of evil conduct.
a. For ex. daughter in military. US gov’t erroneously tells father that daughter died, so father changes will to leave everything to son. Court cannot fix this.
In terrorem, no contest or forfeiture provisions
a. Basic idea—if beneficiary contests will and loses, trying to get bigger share and will is upheld, beneficiary forefeits gift even in the will. Goal to scare beneficiary who would get more by intestacy into not contesting for fear of getting nothing if contest fails.
b. Most states enforce in terrorem clause unless the contestant was in good faith and had probable cause.
