Will Contest
What are the elements to undue influence in the UPC
R-> there was a result appearing to be the effect of the undue influence
O->the alleged wrongdoer had an opportunity to exert undue influence
D-> The wrongdoer has the disposition to exert undue influence
S-> the donor was susceptible to undue influence
Who may bring a will contest?
A person who is a potential beneficiary or heir.
What is the age requirement for Texas
(1) 18 years, or
(2) Married
(3) In the military.
What are the three legal requirements for a testator to write a will?
Age, testamentary capacity, testamentary intent
Couple comes in that is going to be married (they met in a church) a waiver was signed because there would be a conflict of interest between the couple The fiancé leaves to go to the bank and the husband confesses he has a child in another country that he doesn’t want her to know. What must the lawyer do?
Because there is a waiver the lawyer is required to disclose anything each person says to the other person. However the husband didn’t want the lawyer to say anything then, the lawyer could not work with either of them. When the wife left he told her they could not work together, and did not disclose why and told the wife to speak with the husband
What are the elements to undue influence in TX
1) existence and exertion of influence
2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the will or testament
3) execution of will or testament which the maker therof would not have executed but for such influence
Bonus: Who has the burden of proof in texas to bring an undue influence will contest? Does texas burden shift
What are the two types of fraud?
Define them
(1) fraud in the execution-> misrepresentation about the nature or contents of the document the testator is signing
(2) Fraud in the inducement -> misrepresentation concerns an external fact relevant to the pattern of distribution among beneficiaries
What is the TX rule for testamentary capacity?
Testator has to understand
(1) they are making a will
(2) the effect of making the will
(3) his next of kin and natural objects in his bounty
(4) holding all the elements together and to be able to form reasonable judgment as to them
What is the mental capacity to make a will
Testator has to understand:
(1) the consequences of executing a will
(2) the natural objects of her bounty (who her relatives and her beneficiaries are; what individuals fall within this category vary by state)
(3) What property the testator has to convey
(4) how the first three criteria relate to each other
Luke walks in and he wants to marry someone, as part of the prenup for his wife the land goes to the children and new wife. He wants to give a piece of the property in the middle of the land to Kim. He wants the attorney to write it down to give it to his friend. What must Luke do regarding the prenup
Luke must fully disclose to his wife about giving the piece of property to the to Kim in the prenup. If not it could render the agreement unenforceable.
What is an Insane Delusion
Bonus: Can you have an insane delusion and have mental capacity?
Is a false belief that the testator clings to despite overwhelming evidence to the contracty and the belief affects the testator's will. (unreasonable belief)
Bonus: Yes; a testator can pass all criteria of the mental capacity standard and still suffer from an insane delusion that skews the estate plan.
What are the elements of duress?
(1) performs or threatens to perform
(2) a wrongful act
(3) that coerces the transfer to make a transfer
(4) that the transferor would not otherwise have made
What is testamentary intent?
Does TX allow for extrinsic evidence to prove testamentary intent?
(1) the decedent intended the document in question to be a will and to become operative at the person’s death
(2) No; generally TX does not allow for extrinsic evidence unless the terms in the will are ambiguous
What are the UPC elements execute a formal will
(1) In writing
(2) be properly witnessed (attested)
(3) contain the testator's signature
Serna Williams has a joint bank account with a Mike. Serna puts all the money into the account funding the account. Mike uses all the money to pay for his tuition and books. Does the Mike owe Serena Williams anything?
Yes; if Serna wanted too she could bring a claim for conversion because she has put more into the account than Mike.
What are the elements of fraud? (5)
A will is induced by fraud when a wrongdoer
(1) knowingly or recklessly
(2) makes a false representation to the testator
(3) about a critical fact
(4) intending to lead the testator to make a transfer he would not otherwise have made
(5) causes a transfer to happen
What is a no-contest clause?
Bonus: say you have a no-contest clause; but you bring a will contest founded on probable cause and made in good faith. Is that allowed?
Is a provision in a will that states that any beneficiary who brings a will contest or similar challenge will forfeit any bequest in the beneficiary's favor under the will
Yes; case Parker v. Benoist
(1) the entire will has to be written by the testator
(2) It has to be signed by the testator
What is Incorporation by Reference
permits a writing that was in existence at the time of the will’s execution to be incorporated into the will if the language of the will: (a) shows this intent; and (2) describes the writing sufficiently so described so it can be readily identified; and (3) the language of the will must show the intent to incorporate the separate document.
Harun executed a will leaving half of his estate to his son and half to his daughter. He later was told that his daughter had perished in a car accident. He then executed a new will that stated, “because my daughter died I leave my entire estate to my son.” Harun dies before discovering that his daughter survived the crash. How will Harun’s estate be distributed?
According to the doctrine of dependent relative revocation (DRR), the estate will be distributed half to Harun’s son and half to his daughter. The revocation of his first will was conditioned upon the mistaken death of his daughter. He even includes in the provision that he is executing a new will because his daughter died. Therefore, the first will is the one that will prevail and is entitled to probate.
What are the elements to Tortious Interference with an Expectancy?
(1) The existence of an expectancy
(2) intentional interference with the expectancy through tortious conduct
(3) causation
(4) damages
(5) that the probate remedies were exhausted through no fault of the wronged party
You are representing a client who wants to include a no-contest clause in her will. What points would you include in a letter to your client about the reasoning for including a no contest clause and how likely it is to be effective
The no-contest provision helps to avoid wasting estate assets on frivolous litigation. If the testator believes a beneficiary will be upset by the property or lack of property distributed to them and is likely to challenge the will, the provision will provide that the contesting beneficiary forfeits their gift. The provision will only be effective if the beneficiary will lose something they value if they bring a will contest. Therefore, the testator must devise something of value to the beneficiary in the will, which may be a hard sell for some clients. Also, most states only enforce forfeitures under no contest clauses if the case is not brought in good faith, so the client must be aware that all threat of will contests cannot be removed.
What is the doctrine of Acts of Independent Significance? What are its elements
permits the use of facts and circumstances outside the will to affect the property disposition made in the will, but only if the facts and circumstances have significance apart from their effect upon the dispositions made by the will
(1) any fact, act, or event existing or occurring outside the four corners of the will so long as
(2) It is an otherwise objective event that occurs without regard to the testator’s plan of disposition.
What is Republication by Codicil
occurs when the testator executes a codicil to an existing will. The codicil incorporates the provisions of the original will that are not inconsistent with it, and the two documents are treated as the will, with the date of the codicil’s execution serving as the date of execution.
A young lawyer (TTU) goes back to Houston and struggles with his law practice. In Midline his wealthy uncle has agreed to pay to take care of him. The young lawyer quits and moves to Midline to take care of their uncle.The Uncle is wealthy and has wrote a will giving his son everything. The young graduate starts to influence the Uncle turning him against his son. Whenever the son will call, the young lawyer will lie and prevent the uncle from speaking to the son. The Uncle gets fed up and changes the will, the son comes back and finds out what happens and challenges the new will on undue influence.
Does the son have a chance of winning?
Yes; if the son can prove all the factor in Texas law, (1) the existence and exertion of influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the will or testament; and (3) the execution of a will or testament which the maker thereof would not have executed but for such influence