Wills and Trusts Outline

Younger Wills & Trusts Fall 2013
Terms
 
 
Definition
Attestation Clause
Clause at the end of a will where the witnesses to the will’s signing certify that it was signed in front of them
 
Heirs
Only those people who would take in intestacy, don’t know until you die
 
 
Holographic Will
A handwritten, unattested will; considered valid in some jurisdictions
Insane Delusion
A belief not susceptible to correction by presenting the T with evidence indicating the falsity of the belief. Courts will invalidate wills and will provisions resulting from an insane delusion
Mistake
A belief that is susceptible to correction if the T is told the truth
Per Capita
Each issue gets equal shares; example—2 children, 1 child dead, 3 grandchildren from dead child = all alive get ¼
Per Stirpes
By the Stocks (issues get proportional parts); example—2 children, 1 child dead, 3 grandchildren from dead child = alive child gets ½ , 3 grandchildren each get ⅓
Residuary Legatee
One who received the remainder of the estate under a will after disbursements to other legatees and payment of expenses
Scrivener of the Will
One who drafts the will
No-Contest Clause
Clause provides that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will.
Codicil
A document, which in and of itself adds, supplements, subtracts, alters, or revokes provisions in existing will.  When admitted to probate, the codicil becomes part of the will
Constructive Trust
Involuntary trust created by operation of law; it is used where one gains a thing by fraud, accident, mistake, undue influence, etc., and it is imposed by a court of equity to prevent unjust enrichment
Devisee
Person to whom real property is given under the terms of a will
Legatee
Person to whom personal property is given under the terms of a will
Ante-Mortem Probate
Probate of a will during the T’s life; proceeding to declare the validity of a will and the testamentary capacity and freedom from undue influence of the person executing the will
Supernumerary
Interested witness that is not needed to be a witness due to a sufficient number of disinterested witnesses; if an interested witness is supernumerary, witness is entitled to take full bequest
Publication
T’s declaration that the instrument is her will
Self-Proving Affidavit
Provision typed at the end of a will, swearing before a notary public that the will was duly executed.  Will is signed by T and witnesses before the notary public, who then signs and attaches the required seal
Reformation
Equitable remedy by which a court will modify a written agreement to reflect the actual intent of the parties, usually to correct fraud or mutual mistake.  The actual intended agreement must usually be established by clear and convincing evidence
Pecuniary Legacy
A bequest of money
Motion in Limine
Motion made at the beginning or the threshold of court proceedings
Heirs Apparent
The persons who would be the heirs of A, a living person, if A died within the next hour
Contingent Beneficiary
One who will receive the benefit or proceeds of an estate, trust, life insurance policy or the like but only if some particular event or circumstance (such as the death of the primary beneficiary) occurs
 
 
 
Mental Capacity, Undue Influence, Fraud, Duress, and Tortious Interference with an Expectancy
Mental Capacity—Test of Capability (NOT actual knowledge)!
·         Restat. 3d.—8.1               
o   To be competent to make a will, T must be an adult (usually 18 or older) and must be capable of knowing and understanding in a general way
§  The nature and extent of his or her property,
§  The natural objects of his or her bounty, AND
§  The disposition that he or she is making of that property,
o   AND must also be capable of
4.       Relating these elements to one another and forming an orderly desire regarding the disposition of property
·         Cunningham test (used when testator lacked general testamentary capactity due to general insanity, mental illness, physical illness.
o   Mental capacity to make a will requires
§  The testator understands the nature of her act
§  She knows the extent of her property
§  She understands the proposed testamentary disposition
§  She knows the natural objects of her bounty
§  The will represents her wishes
·         Capacity Thresholds
o   Test for capacity in WILLS requires less mental capacity than gifts or contracts, and more mental capacity than marriage
·         Professional Responsibility
o   A lawyer may not draft a will for a person the lawyer believes to be incompetent, but the lawyer may rely on his own judgement of the client’s capacity.
·         General Rule on Evidential Burden
o   Once the proponent adduces prima facie evidence of due execution, the party contesting on the grounds of lack of capacity has the burden of persuasion
 
Facts
Outcome
Take Away Message
In re Estate of Washburn
T made 3 wills, 2 in the same year.  Wills in the same year switched dramatically; last will benefited the caretaker/companion the most.  Evidence that the T was suffering from Alzheimers.
Proponent offered sufficient evidence to overcome the presumption of sanity.
 
T lacked the testamentary capacity necessary.
“Every person is presumed to be sane, until there is some evidence to rebut that presumption”
In re Wright’s Estate
Gave real estate to friend, daughter, and other property to friend.
Notary and witnesses signed at execution
Daughter says testator lacked capacity.
Notary and witnesses try recant
Will is upheld, contestants didn’t meet burden of proof to show insane
Cant recant.  If think lack capacity, then do not sign.
Wilson v. Lane
T’s testamentary capacity challenged with evidence that she was eccentric, aged, and peculiar in her last years.  Additional evidence included a guardianship petition (filed a few months after the will was executed), testimony of an expert witness (stating that it appeared that T was in early stages of Alzheimer’s) and a letter from T’s physician.
“[T]he law does not withhold from the aged, the feeble, the weak-minded, the capricious, the notionate, the right to make a will, provided such person has a decided and rational desire as to the disposition of his property.”
 
Evidence did not show how her supposed condition would affect her competency to make a will.
A person is mentally capable to make a will if she “has sufficient intellect to enable [her] to have a decided and rational desire as to the disposition of [her] property.”
 
Being eccentric, aged and peculiar does not show a lack of testamentary capacity.
 
Having Alzheimer’s or dementia does not automatically show a lack of testamentary capacity.
 
Insane Delusion
·         USED WHEN STILL HAS GENERAL FACULTIES, SUFFERS FROM DELUSIONS LIKE PARANOIA
o   Insane delusion is a false conception of reality.  It is a persistent belief in that which has no existence in fact, and which is adhered to against all evidence. It materially affects the disposition in the will.
§  Different from a mistake for a mistake is susceptible to correction if the testator is told the truth
·         Majority View
o   Delusion is insane even if there is some factual basis for it if a rational person in the T’s situation could not have drawn the conclusion reached by the T
 
Facts
Outcome
Take Away Message
In re Strittmater
T died leaving a will giving her entire estate to the National Women’s Party.  Evidence from doctor showed that T suffered from schizophrenia, which included paranoia and a split personality (there was evidence of this).  T worked at the NWP as a volunteer and spoke of leaving her estate to the NWP.
Will was a product of T’s insanity, and is thus invalid, for T had an insane hatred of men.
 
Court concluded that her paranoiac condition, especially her insane delusions about males, led her to leave her estate to NWP.
A will that is the product of the T’s insanity is invalid.
 
If one is mentally incapacitated in some form and is not rational, the Will will be denied probate because it does not represent the T’s rational desires
Breeden v. Stone
T wrote a holographic will, written after he was involved in a highly publicized hit-and-run accident that killed the driver of the other vehicle.  T died from a self-inflicted gunshot wound.
 
Evidence that T used cocaine and alcohol for several years prior to his death, and used those substances proximate to the time of death.  Evidence that T’s moods were rollercoaster-like.
Will was legible, logical and reasonably set out the T’s intent.
 
Insane delusions did not affect the disposition in his will, for the proponents were not part of an earlier will either.
One can have insane delusions on some matters but be able to transact business concerning other matters.
 
The correct test is whether the delusion materially affected the contested disposition in the will.
In re Honigman’s Will
Mrs. Honigman objected to the probate of her husband’s will, which left the bulk of his estate to relatives, contending that he had an insane delusion that she was being unfaithful.
Court considered the evidence, and found that T did have an insane delusion.
 
Court but the burden on the proponent to show that an unnatural disposition arguably within the insane delusion was not in fact a product of that delusion (which the brothers and sisters could not meet).
A will is invalid if the insane delusion caused or affected, or might have caused or affected, the disposition of the property.
 
Undue Influence
·         Restat. 3d.—8.3
o   A donative transfer is invalid to the extent that it was procured by undue influence, duress or fraud.
o   A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor (age, inexperience, dependence, physical or mental weakness) that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made…
·         Burden Shifting
o   Once proponent has proved validity of will (usually by due execution), contestant must prove undue influence by clear and convincing evidence. 
§  Donor was susceptible to undue influence
§  Alleged wrongdoer had an opportunity to exert undue influence
§  Alleged wrongdoer had a disposition to exert undue influence
§  There was a result appearing to be the effect of the undue influence
o   PRESUMPTION OF UNDUE INFLUENCE IF CONFIDENTIAL RELATIONSHIP OR SUSPICIOUS CIRCUMSTANCES
§  Types of Confidential relationship
(a)    Fiduciary- attorney is in a fiduciary relationship with client
(b)   Reliant- special trust and confidence (doctor and patient, financial advisor)
(c)    Dominant