Estates and Trusts – Professor Kristen Holmquist- Fall 2010
Casebook: Wills, Trusts, and Estates
By: Dukeminier, Sitkoff, Lindgren
Main Question of the Class: who gets your property after you die?
Answer depends on whether you have the ability to control it at death.
a. Did you already rescind control over the property during your life?
i. Non- probate property: form of property where the document that creates that interest dictates its disposition
1. Life insurance/POD Ks
2. Joint tenancy
3. Life estates/remainders – least prevalent
4. Inter vivos trusts – this is the most prevalent one
b. Probate Property
i. Depends on whether you’re testate or intestate
I. Wills: Capacity and Contests
To make a valid Will, you must have sufficient mental capacity, be free of undue influence, fraud and insane delusions.
1. Mental Capacity
c. Hierarchy of required level of capacity: Marriage à Will à Inter Vivos Gift à Contract (means that mental capacity for will is relatively low)
d. Policy: We want ppl to feel confident that the choices they make about distributing their property during their lives will be honored even if they go crazy later and change their wills.
e. Common factors to look for in cases challenging rationality:
i. Old testator; Alzheimers/accentric/forgetful; W made close to end of life; would effect the T’s family by leaving a lot to their caregivers.
ii. Washburn: Three Ws; with every subsequent one a bigger share was left to the caregiver, and 2nd and 3rd were only 3 weeks apart and contained vastly different provisions. Holding: Crt Found sufficient evidence for a reasonable trier of fact to determine that given all the circs, the T was incompetent to execute the W. Rule: petitioner contesting will must offer satisfactory evidence to overcome the presumption of capacity:
iii. Wilson v. Lane: facts similar to Washburn but holding is opposite. Evidence that testatrix was eccentric, had irrational fear of flooding and water, trouble dressing, etc. found insufficient to deprive her of the right to make a valid W, b/c none showed that “she was incapable of forming a rational desire as to the disposition of her property”.
f. Rule for Mental Capacity: a person is capable to make a will if she has sufficient intellect to enable her to form a decided and rational desire as to the disposition of her property. T must be capable of knowing and understanding in a general way:
i. Nature of her property/estate (just have the capacity to know if she chooses to investigate what’s part of the estate)
ii. Natural objects of her bounty (who she wants to inherit her property – probably like intestacy scheme but there’s a split and other side is an objective standard (would a reasonable person in the T’s place leave it to that taker?)
iii. Understand the disposition of property being made by will
iv. Seeing how it all fits together – relating these elements to one another and forming an orderly desire regarding the disposition of the property à have to know what the will is accomplishing (like disinheriting legal heirs)
g. This rule tests capacity, not knowledge – reasonable mistake wont render you incompetent; does not require average intelligence.
h. There is a rebuttable presumption of T’s capacity
2. Undue Influence:
a. Capacity is most frequently not found in cases where there is some undue influence but there is not enough evidence to show it so capacity becomes the factor the court stresses.
b. Policy: We want Ws to be the product of your own free will and not coercion.
c. Undue Influence Tests:
i. Main test:
1. Testator’s susceptibility to influence
i. Evidence: old and eccentric
2. Would-be influencer’s motive
i. Evidence: received big gift, or even bigger than intestacy share.
3. Opportunity to influence
i. Evidence: closeness of relationship
4. Causation: did these three things come together to create a W that looks like its been coerced?
i. b/c causation is hard to prove and some facts will be present to prove the first 3 prima facia factors, crts have an alternative “burden shifting test”
ii. Lipper v. Weslow: court found existence of factors 1-3, but not enough proof that the W as written resulted from the D substituting his mind and will for that of T.
* Do not have to have all four, just need to show enough.
ii. Burden Shifting Test: B/c causation is hard to prove, this test shifts burden to W’s proponent to prove there was no causation. Under the test, if opponent shows “suspicious” versions of motive, opportunity, and susceptibility then causation is presumed!
1. “Suspicious version of” Susceptibility: Confidential relationship (but there can be others)
i. Lawyers taking under W that he wrote = suspicious, unless (1) relative, (2) other lawyer signed off & attests to no undue
free from insane delusions. Holding: T had requisite mental capacity but was suffering from insane delusion (fear of surveillance & assassination plot) which did not affect or influence the disposition of property in the will.
4. Fraud: Consists of (1) false statements of material fact, (2) known to be false by person making them, (3) made w/intention to deceive T, (4) which actually deceive T, (5) and cause T to rely on them in making the W. Two types:
a. Fraud in the execution – someone tricks T into signing a document the she doesn’t know to be a W, or switches Ws.
b. Fraud in the inducement – T falsely induced into writing will, e.g., through false promises of care.
c. Puckett v. Krida: Two nurses isolate elderly T and convinced her that relatives were wasting her $ and wanted to put her in nursing home. Holding: Crt set aside W favoring nurses as fraud in the inducement.
d. Latham v. Father Divine: T made a W in favor of Father and then expressed desire to make another will providing for P, and P alleges T was prevented from executing 2nd W b/c Father conspired to kill and did kill her before she executed it. Rule: Where a devisee prevents T from providing for one she would have provided for but for that devisee’s interference, the court will impose a constructive trust on the devisee to the amount the defrauded party would have received had the intent of the T not been interfered with. Constructive trust will be erected in equity to satisfy the interests of justice; prevent unjust enrichment.
e. Effect: Fraud will only wipe out as much of the will as it caused
5. Tortuous Interference w/ Expectancy – another theory that can be used to rectify fraud or undue influence. Attack’s the person making the interference, not W. Has longer SOL and possibly punitive damages.
a. Schilling v. Herrera – Holding: D stated a claim in tort b/c he didn’t have the fair opportunity to exhaust his probate remedies since he didn’t even know his sister had died or that the caregiver submitted her W into probate. Rule: P must first exhaust probate remedy before suing in tort; P must then prove that the interference involved conduct tortious in and of itself (fraud, duress, undue influence).
