Generally
Who has motive to contest
Heirs who would benefit through intestacy
Beneficiary of prior will
Definition
Basic Elements
Influence
Subvert testator's mind
Causation
Impact on gift
The gift will most likely be void
Fraud in the Factum
Testator decieved as to identity of contents of instrument
Who has standing?
AN interested person: spouse, heir, beneficiary, etc
Will Contest Remedies
Denial of Probate
Partial invalidity
The burden
The burden is on the contestants to prove undue influence
To atty or supervising atty
To parent of atty
To descendant of parent of atty
To employee of atty
To spouse of anyone above
Elements of Fraud
False Representation to Testator
Knowledge of falsity
T reasonably believes representation
Causation
What people contest on?
Lack of legal capacity
Lack of Testamentary capacity
Lack of testamentary intent
Failure to comply with formalities
Constructive Trust
equitable remedy to prevent unjust enrichment
Effect of Mere Opportunity
Mere opportunity is not enough. You need more than influence and opportunity. Need to lack the ability to resist
Impact on the gift in Texas
The gift may not automatically void but attorney subject to discipline
Mistake in the inducment
Testator mistaken as to extrinsic fact and makes will based on that fact
Which parties must a contestant tell these parties about the contest?
Institution of Higher education or Charities
Nexus Requirement
Even if testator had an insane delusion, will remains valid unless insane delusion impacts property disposition
Types of Circumstantial Evidence
Unnatural Disposition
Oppurtunity
Relationship
Susceptibility/ability to resist
Benefificary connected with preparation
Exceptions to Atty as beneficiary
B is Testator's spouse
B is Testator's ancestor
B is testator's descendant
B is related to testator within 3rd degree
Scrivner's Error
Statute was added to allow for reformation to correct mistakes veen if the will in unambiguous if it can be shown by clear and convincing evidence that the testator's intent and the terms of will were affected by a mistake of fact or law in either expression or in inducement
Statute of Limitation on Tolling
Two years from when an incapacitated person's disabilities removed
Innocent Heirs in a Constructive Trust
The innocent heirs of the deceased lost their share as well - Pope v Garrett
Mortmain Statute
Staute which limits gifts to charity under specified circumstances
Texas does not have one because it is likely unconstitutional
Texas Rule of Professional Conduct 1.8 (c)
The attorney will be subject to discipline for drafting a will and having themselves as a beneficiary
Public Policy
- May not disinherit someone for no reason