Wills Rules 6

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Wills Rules 6
2010-07-16 17:29:31
Contesting Will

Contesting the Will
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  1. Testamentary capacity
    Basic requirements: Must be 18 and of sound mind.

    Lacks requisite capacity if at time of execution, did not have ability to know:

    • nature of act,
    • character of property,
    • objects of bounty
    • ability to inter-relate the above

    Burden of proof is on the party alleging incapacity.

    No standing for those who would not benefit from successful contest of the will.
  2. Insane delusion
    Belief for which there is no factual or reasonable basis, but to which testator adheres despite all reason and evidence to the contrary (but not applied to religious or spiritual beliefs)

    The insane delusion must be the cause of the strange disposition.
  3. Undue influence
    Use of special relationship to overpower testator's free will and intent. Affection, gratitude, and regular persuasion are NOT undue influence.

    Contestant must show: exertion of influence and effect of influence was to overpower mind and will of testator, resulting in will that would otherwise not have been executed.

    Burden shifts to beneficiary of the will when there was a confidential relationship with the testator + suspicious circumstance.

    Usually proved through circumstantial evidence - family relations, dependency, circumstances and facts, physical and mental health of testator.

    EXAM NOTE: As with insane delusions, undue influence is extremely fact-sensitive. Remember to discuss causation and the specific facts of the particular case when analyzing whether the will was a product of undue influence. Unless the undue influence is the cause of the strange disposition, there is no defect in capacity
  4. Fraud
    Misrepresentation by beneficiary with intent to deceive for the purpose of influencing testamentary disposition.

    Will would not have been executed but for the fraud.

    Proven by clear and convincing evidence.

    Remedy for fraud and undue influence = constructive trust