Wills
Can a will override ademption?
Yes
What is apportionment?
The allocation of tax liability; the will can determine the source from which taxes are to be paid but by default it is the residue or pro rata based on the value of the property
What are the requirements to prove mental capacity to execute a will?
1. know the nature and extent of their property
2. know the natural objects of their bounty
3. know the disposition they are making of that property and
4. be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property
What are the elements of fraud?
A will is induced by fraud when a wrongdoer (1) knowingly or recklessly, (2) makes a false representation to the donor, (3) about a critical fact, (4) intending to lead the testator to make a transfer they otherwise would not have made, (5) which causes the transfer
What type of damages are permitted in a tortious interference with an expectancy claim?
Actual and punitive
What do anti-lapse statute do? Do they override class gift rules?
They override the normal lapse patterns of property passing to a deceased beneficiary by substituting the descendants of the deceased beneficiary to take; Yes
What happens to a bequest when a stock splits, merges, or spins off a company
The bequest includes any shares generated by those actions--traces the economic equivalent of the original gift
List some of the red flags that often lead to a will contest
Elderly, impaired faculties, recent debilitating illness, on psychotropic drugs, alcoholic, cannot come to the office, not a regular client of the firm, related to a client of the firm who will benefit from the will, second marriage, large estate
Explain burden-shifting in undue influence litigation
Once the contestant presents enough evidence to trigger the presumption of undue influence, the alleged influencer must disprove
When will courts not enforce a no-contest clause?
Some states will never enforce; those that do will not enforce them if the beneficiary has good cause for the claim
What is abatement? How do most states abate?
The reduction or elimination of a testamentary gift to pay an obligation of the estate or a testamentary gift of a higher priority; most states abate pro rata at each level--first the residue, then general bequests, with specific bequests taking highest priority
What is the common law doctrine of exoneration? How is this different under the modern law?
When a will makes a specific disposition of property that is subject to a mortgage, to secure a note on which the testator is personally liable, it is presumed the testator wanted the debt paid out of the residuary estate; Modern law it is not presumed and the debt stays with the property
How is undue influence proven?
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
What elements does the law often require to find undue influence?
A confidential relationship, suspicious circumstances, and an unnatural bequest
How do you prove tortious interference with an expectancy?
The plaintiff must prove (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
What are the rules for applying anti-lapse statutes?
1. The beneficiary is in the family class of beneficiaries protected by the state statute (which varies, but does not include spouses), and
2. The beneficiary has surviving issue, and
3. The will does not provide a contrary intent
Name some situations which trigger identity theory of ademption.
1. Change in ownership in one business to another not by direct decedent action
2. Change in property to a chose in action (insurance proceeds, condemnation award, a note, etc.)
3. Property acquired as a replacement for devised property
4. A cash devise in lieu of the property where doing so would be consistent with a manifested plan of distribution
List the steps for bringing a will contest.
1. Requires a formal testacy proceeding even if the will is probated informally
2. Must be brought by an interested party such as an heir, devisee, etc.
What are the elements of duress? What does duress normally include?
A will is induced by duress when a wrongdoer (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; normally includes a threat of force
What must a no-contest clause provide to be effective?
Must give the beneficiary a bequest--they must have some property to lose by bringing a claim.
What is ademption? How does it operate under identity theory versus intent theory?
Specific devises of real and personal property that are subject to extinction because the property is no longer in the estate; Identity theory states the gift is extinguished but intent theory allows the beneficiary to receive the cash value of the item if they can prove the testator wanted that
What is a slayer statute? What are the possible remedies?
A statute that triggers property loss due to the individual being sufficiently responsible for the death of the decedent; remedies include: (1) the slayer is treated as predeceasing the decedent, (2) the slayer receives the property but an equitable remedy applies (constructive trust) and the property must be reconveyed to the victim's heirs, or (3) ignore it and handle it under the principles of criminal law
What is an insane delusion? How does it work to invalidate the bequest?
A belief that the testator is fixated upon even in the face of overwhelming contrary evidence and that affects the testator's will--requires blind adherence to a completely irrational conclusion; court may strike only that part of the will but the bequest must be the result of the insane delusion
Explain fraud in the execution as compared to fraud in the inducement
Fraud in the execution involves misrepresentation about the nature or contents of the document the testator is signing whereas fraud in the inducement is when the misrepresentation concerns an external fact relevant to the pattern of distribution among beneficiaries
What is a no-contest or in terrorem or forfeiture clause? What is its purpose?
A provision in a will that states that any beneficiary who brings a will contest or similar challenge will forfeit any bequest in their favor under the will. Meant to ward off frivolous suits and provide a deterrent against borderline claims