Am I capable?
(1) the nature of the act being performed
(2) The nature and extent of the property to be disposed of, and
(3) the objects of their bounty.
A contestant lacking direct evidence would normally prove undue influence through circumstantial evidence by showing: (4)
(1) the donor was susceptible to undue influence,
(2) the alleged wrongdoer had an opportunity to exert undue influence,
(3) the alleged wrongdoer had a disposition to exert undue influence, and
(4) there was a result appearing to be the effect of the undue influence.”
Paul is the caregiver for his elderly mother, Karen. He gives Karen several documents for her to sign, including a will, medical releases, and powers of attorney. Among these documents is a deed transferring the title of Karen’s house to Paul. Karen is visually impaired and trusts Paul to accurately describe what she is signing. Paul presents the deed and claims it is just another medical form. Karen signs the document without understanding that she is giving away her property. What kind of Crime is this?
Fraud in the Execution (of the will)
T/F Interested parties may bring a will contest on the grounds that the will was not executed with sufficient formalities as required by state statute.
True. A will must typically be executed in compliance with statutory formalities, wills that do not are not entitled to probate.
False. To have standing to bring a will contest, a person must be a potential beneficiary or heir.
Suppose you are advising Umberto, a client who has progressing dementia. He lives in an assisted care facility, having good days and bad days. He has asked if he can execute a holographic will to help him decrease the costs of his estate planning. Assuming that holographs are valid in his state, how do you advise him?
While the state may allow for holographic wills, Umberto should be advised to execute an attested will. If the will is later contested, the witnesses to Umberto’s will can testify to Umberto’s mental capacity. The will should also include a self-proving affidavit that provides prima facie evidence of capacity.
What are the three elements test of the Texas Undue Influence 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
(1) performs or threatens to perform, (2) a wrongful act, (3) that coerces the transferor to make a transfer, (4) that the transferor would not otherwise have made.
These are the elements for inducing a will through what method?
Duress
T/F. In contesting a will on grounds of non-compliance with execution formalities, the will contestant CANNOT combine the allegations with a claim based on lack of testamentary intent, like undue influence or fraud, and/or a claim based on lack of mental capacity.
False. The contestant typically does combine these allegations.
What is a no-contest clause provision?
States that any beneficiary who brings a will contest or similar challenge will forfeit any bequest in the beneficiary’s favor under the will.
A no-contest clause can help ward off frivolous suits and also provide some deterrent against borderline claims.
You are designing a screening form for clients of your solo law practice to determine whether they have sufficient mental capacity to execute a will. Is determining whether the potential client can identify her relatives and her assets and understands the consequences of her estate plan sufficient? What else do you need to know? How can you discover it?
nWhile a testator can meet the requirements for mental capacity if she can identify her relatives and her assets and understands the consequences of her estate plan, an insane delusion may still invalidate a testamentary act. Because a person may lead a normal life but still suffer from an insane delusion, a simple screening form may not be enough to identify the delusion. A discussion with the testator about why the testator wants to include or exclude people from her estate plan may help to determine if there is a rational basis for the testator’s decision.
You represent a daughter who believes that her father’s estate plan was manipulated by his ex-spouse. What facts do you need to gather to determine whether there are grounds for an undue influence claim?
Enough facts need to be gathered to show that at the time of the testamentary act, the ex-spouse controlled the volition of the father, interfered with his free will, and prevented an exercise of his judgment and choice. If there is no direct evidence of the ex-spouse’s undue influence, undue influence may be proven through circumstantial evidence by showing (1) the father was susceptible to undue influence, (2) the ex-spouse had an opportunity to exert undue influence, (3) the ex-spouse had a disposition to exert undue influence, and (4) there was a result appearing to be the effect of the undue influence.
(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; (4) damages; and (5) (in most states) that the probate remedies were exhausted through no fault of the wronged party.
These are what a plaintiff must prove to prevail in what kind of claim?
Tortious interference with an expectancy (or inheritance)
Five years ago, you drafted a will for Tyler, then age 20, which left his entire estate to his girlfriend, Sunny. Tyler became a country music star and earned significant income, but died due to alcoholism at 27. Tyler's mother and sole heir, Jubilee, wants to have the will declared void because Tyler irrationally and inaccurately believed that Jubilee's neighbor was secretly heading a terrorist organization. Tyler's will does not mention Jubilee or her neighbor. In a paragraph to include in a letter to a client, explain whether Jubilee has grounds to contest the will. Note which facts will be determinative and advise Jubilee of the likely outcome of a claim.
-Unlikely that there would be viable grounds to contest Tyler's will based on insane delusion.
-While the terrorist allegations are wild, an insane delusion only invalidates a will when the delusion directly affects the testamentary disposition.
-Tyler’s will was executed years earlier, makes no reference to Jubilee or the neighbor and nothing suggests that this mistaken belief caused him to leave his estate to Sunny or to exclude Jubilee.
You represent the brother of a wealthy unmarried doctor who has left the majority of her estate to the American Cancer Society, in addition to gifts of $50,000 each to her son, her daughter, and her brother. The will contains a no-contest clause stating "any beneficiary of the will who instigated a will contest regardless of whether or not such proceedings were instituted in good faith and with probable cause would have their benefits under the will revoked." There is no evidence of wrongdoing by the charity, but when she executed her will, the doctor was in her late nineties and had some health problems. Her brother wants to bring a will contest based on lack of capacity. When would a court enforce and not enforce the clause?
-If the brother can show he is bringing a suit in good faith and with probable cause, the court may not enforce the no-contest provision. However, without any evidence of wrongdoing, it will be difficult to show the brother is bringing the contest in good faith and with probable cause. This may lead a court to enforce the no-contest provision against the brother, causing the brother to lose his $50,000 gift.
Anthony, who is 87, lives in an assisted-living facility. He uses a wheelchair and has good days and bad days with respect to his dementia. Anthony's daughter normally handles his financial affairs, but there is no formal guardianship. What facts are relevant to determine whether Ethel has the necessary capacity to execute a will?
Need to focus on the legal test for capacity at the moment of execution — not his general diagnosis, age, or overall health.
Relevant facts include whether Anthony can, at the moment of signing, understand he is making a will, know the general nature and extent of his property, and identify the natural objects of his bounty. Because he has good and bad days, it also matters whether he is experiencing a lucid interval during execution. Evidence from caregivers or witnesses about his coherence and ability to articulate his decisions would help determine capacity.
Cody has always relied on the advice of his twin, Hannah. When Cody told Hannah he was thinking of writing a will in favor of his fiancée, Hannah talked him out of it. Cody died with no will, and Hannah received the entire estate through intestacy. Does the fiancée have grounds for a claim of undue influence? Assess the probable outcome if the fiancée brings the claim.
The fiancée likely does not have a viable undue influence claim. Undue influence requires proof that Hannah overpowered Cody’s free will and caused him to make a decision probably would not have made. Here, Hannah merely gave advice, and Cody was free to accept or reject it; Plus, there is no evidence of coercion or anything rising to undue influence.
Because intestacy results only from Cody’s own choice not to execute a will, a court would almost certainly reject the claim, and the fiancée would not recover.
Anthony was a member of a tightly-knit Catholic religious group known for its followers' intense devotion. Anthony executed a will, leaving almost his entire estate to Father Jones, the hot, charismatic leader of the group. Years later, he regretted the decision and made an appointment with his lawyer to revoke his will, allowing the property to pass to his two adult children. Using his connections with a surgeon who was a member of the group, Father Jones had Anthony admitted for heart palpitations. He was sent into surgery and died. If Anthony's children were to challenge Anthony's final will, leaving his estate to Father Jones, would they have a case on grounds of duress?
Probably yeah. Here, Father Jones used his influence to have Anthony wrongfully hospitalized and sent into surgery, preventing him from revoking the will he regretted. It was a scheme intended to keep the first will in place.
Anthony intended to revoke the will and took steps to do so, a court would likely find that Father Jones’s actions coerced the continued existence of the will, satisfying duress.
You represent Anthony, who comes from an argumentative family and wishes to leave his entire estate to his roommate (and they were roommates) and exclude her family members. Explain what a no-contest clause is, the legal implications of including one, and what the benefits and downsides may be.
-a provision in a will stating that if a beneficiary challenges the will and loses, that beneficiary forfeits whatever gift the will provides to them.
-Deters frivolous suits and allows suits with probable cause and good faith.
-For a clause to have teeth, it must be attached a piece of property worth forfeiting.
You represent the brother of a wealthy unmarried doctor who has left the majority of her estate to the American Cancer Society, in addition to gifts of $50,000 each to her son, her daughter, and her brother. The will contains a no-contest clause stating "any beneficiary of the will who instigated a will contest regardless of whether or not such proceedings were instituted in good faith and with probable cause would have their benefits under the will revoked." There is no evidence of wrongdoing by the charity, but when she executed her will, the doctor was in her late nineties and had some health problems. Her brother wants to bring a will contest based on lack of capacity. What two facts are likely to be relevant to assess her mental capacity?
(1) The doctor's health condition at the time of executing the will: Her advanced age and any existing health problems could be important, especially if they affected her cognitive functions.
(2) The doctor's ability to understand the nature and extent of her property: This includes whether she understood the nature of the act being performed, the nature and extent of the property to be disposed of, and the objects of her bounty. If the brother can show that the doctor was suffering from a condition that impaired her judgment, such as dementia or severe cognitive decline, this could strengthen his claim of lack of capacity.
Anthony was a scientist who gradually developed the belief that Earth was being overtaken by lifeforms from a distant planet. Anthony was otherwise decisive and managed his affairs well. Two years before he died, Anthony executed his only will, leaving his entire estate to the Society for Research of Extraterrestrial Intelligence, a charity to which he donated during life and where he served on the board for several years and until his death. Anthony's will is currently in probate with one of his children, Elesa, challenging its validity on the ground that his mother suffered from an insane delusion. Identify two factors that favor Elesa's position or two factors that favor the Society's position.
Elesa: (1) Anthony held a fixed false belief that Earth was being overtaken by extraterrestrial lifeforms, which could qualify as an insane delusion if it was irrational and persisted despite contrary evidence.(2) If Elesa can show that his belief about aliens motivated him to leave everything to the Society caused the bequest this would support invalidating the will.
Society: (1) Anthony’s bequest is consistent with his longstanding pattern of charitable giving and leadership with the Society, suggesting the will expresses his true, rational wishes rather than the effect of any delusion. (2) Anthony otherwise functioned normally, managed his affairs, and made rational decisions, indicating that even if he had an unusual belief, it did not affect the specific decision to leave his estate to the Society.
What you would do if he said yes okay would go?
I think i would <3
Valeria Richards comes to your office explaining that her mother, Sue Storm, has left her entire estate to the two nurses who were her primary caregivers in the last months of her life. The nurses told Sue that Valeria was wasting Sue's money and wanted to put her in a nursing home. On what grounds may Valeria contest the will?
-Fraud in the inducement and undue influence.
-If the nurses falsely told Sue that Valeria was wasting her money and planned to put her in a nursing home, those statements are misrepresentations that changed the will, which Sue relied on to change the will. (Fraud)
-The nurses were Sue’s caregivers during a period of vulnerability giving them a position to support undue influence.
It is your will execution ceremony. You need two witnesses. One of your witnesses is deaf but brought their a signer to help understand the execution. Your other witnesses smoked so much weed that he does not understand where he is going and only knows that he will be paid in food for being there. He fails to say the date correctly twice. Yet, he is still able to sign and the will is deemed valid. In the future, is it possible that this will is not entitled to probate?
UM DUH.
Yes. Even though the will was signed and initially treated as valid, a future challenger could argue that the witnesses lacked the minimal competency required to properly observe the execution.
You represent the brother of a wealthy unmarried doctor who has left the majority of her estate to the American Cancer Society, in addition to gifts of $50,000 each to her son, her daughter, and her brother. The will contains a no-contest clause stating "any beneficiary of the will who instigated a will contest regardless of whether or not such proceedings were instituted in good faith and with probable cause would have their benefits under the will revoked." There is no evidence of wrongdoing by the charity, but when she executed her will, the doctor was in her late nineties and had some health problems. Her brother wants to bring a will contest based on lack of capacity. Identify a strength and a weaknesse of her brother’s lack of capacity claim.
Strengths: (1) The doctor’s advanced age and health problems: These factors may support the argument that she lacked the mental clarity to fully comprehend the implications of her decisions when executing the will. (2) The relatively small gifts to family members compared to the large bequest to a charity: This could be used to argue that the doctor may have been influenced or coerced by others or that her decisions were not consistent with her prior wishes, suggesting a possible lack of capacity.
Weaknesses: (1) No evidence of wrongdoing by the charity: Since there is no indication that the American Cancer Society or anyone else unduly influenced the doctor, this weakens the brother’s claim, as lack of capacity would need to be demonstrated independently. (2) The doctor’s past actions and awareness of her estate: If there is evidence that the doctor had been in control of her estate planning decisions over the years and was capable of understanding the terms of her will when she executed it, this would undermine the brother’s claim that she lacked capacity at the time.