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Wills, Trusts, and Estates
University of South Carolina School of Law
Medlin, S. Alan

Chapter III: Testacy: Capacity and Contests [§ 2-501] Requires (1) sound mind and (2) status other than that of a minor.
Mental Capacity
From most capacity needed to least, it goes: K made during life; will; and marriage—rationale: we want to protect the living more than the dead. Capacity is measured at the time the will is made.
-Capacity is required at the same time a will is executed or revoked – BUT NOT BEFORE OR AFTER
SCPC §2-501 – AGE – in order to make a valid will a person must be either:
(i) married, or
(ii) age 18, or
(iii) emancipated
1. SCPC §2- 501 – Test for Mental Capacity – requires “sound mind” to make a will
Although no definition of “sound mind” in statute, traditional test: NENODROD TEST
a. T knows the nature and extent of his property (capable of knowing, or ability to know what you have);
b. T knows the natural objects of his bounty (capable of knowing who otherwise would take)
c. T knows the disposition he is making of his property(know who you’re proposing to give it to; basically, capable of knowing what a will does); and
d. T is capable of relating these elements to one another to
e. T can form an orderly desire/plan for the disposition of his property
Weeks v. Drawdy: SC Case — only listed 3 items in the test for capacity:
(1) know estate
(2) know objects of attections
(3) know to whom testator wished to give her property
2. Presumption of Capacity in SC:
-In a will contest, once formal proof of the execution of a will has been mad, the capacity of the Testator is PRESUMED, and contestants must show the LACK of capacity
3. Lucid Interval:
If contestants make a showing of general or chronic insanity at the time the will was executed, the incapacity is presumed to continue, and the proponents of the will have the burden at that point of showing that the Testator had a LICID INTERVAL when the will was executed.
4. Presumption of Incapacity in SC:
A rebuttable presumption of INCAPACITY exists if testator:
(a) has been adjudicated insane;
(b) has had a conservator appointed; or
(c) has been confined in a mental institution
5. Evidence (permitted testimony) as to Capacity:
a. Expert Witness
A medical diagnosis of capacity by an expert witness is not conclusive; the issue is still one for the trior of fact
b. Subscribing Witness
When the witness to a will signs the attestation clause, he is witnessing not only the execution of the will but also
as to the Testator’s sanity, and he may testify to that effect without being an expert witness
6. Testamentary Intent:
Extrinsic Proof of Testamentary Intent:
-if it is not clear whether a document is a will, extrinsic evidence is admissible on the question of testamentary intent
-If a paper is unambiguously a will, it is possible that extrinsic evidence may be admissible to show lack of testamentary intent, although the answer is not clear

When a jury determines the validity of a will, many wills are overturned (about 75%).
a. The burden can shift to the proponent if it is shown that T was suffering from chronic incapacity (i.e., had a conservator appointed), but the will can still be valid in this case (i.e., proponent must show that the will was executed will during a “lucid interval.”)
b. As a lawyer, you can’t make a will for a client you believe is mentally incompetent (have to reasonably believe the client has the mental capacity necessary).
A. Insane Delusion
a belief which is based upon an imagined state of facts that do not exist and which is contrary to all evidence and
probability (in some states an insane delusion that affects a will may be separate grounds for not enforcing all or part of the
will) IN SC – an insane delusion is NOT AN INDEPENDENT ground for attack upon a will, BUT the existence of an insane
delusion can be considered in connection with the general issue of capacity.

*Focuses on a particular issue (T can have mental capacity, but have an insane delusion).
In re Honigman (NY test/minority view) – A belief someone has that is against all reason and evidence. This test is more difficult to prove than the majority view’s test. I.e., no evidence whatsoever that a reasonable person could base the belief. (The insane delusion in Honigman was that T’s wife was cheating on him.)
2. Majority View – An unreasonable belief someone holds that no reasonable person would hold based on the underlying facts and circumstances. I.e., a delusion could be insane even if there is some factual basis for it.
3. To overturn a will, the contestant must prove:
a. That an insane delusion existed
b. The insane delusion that existed caused the gift (but in the Honigman case [and in NY] all that needed to be shown was that the insane delusion MIGHT HAVE caused the gift).
4. It is unclear whether this is a separate ground for contesting capacity in S.C., but many of the same facts in a general mental capacity contest also support insane delusion.
5. Insane Delusion is different from Mistake in that:
a. In a delusion there is proof of confrontation w/ the truth.
b. General rule is that the courts will not reform or invalidate a will b/c of a mistake, where they will invalidate for an insane delusion.
B. Undue Influence—Coercion that results in T doing something he otherwise would not have done.
Will, or part of the will, is a result of coercion of another and represents other than what T desired to do.

TWO WAYS TO PROVE UNDUE INFLUENCE: (1) Circumstantial (2) Presumption
a. T was susceptible to an undue influence (mental or physical capacity); and
b. Opportunity to exercise such influence and to effect wrongful purpose
*general influence or affection is not adequate – the influence of the 3P must have been directed toward the procuring of a particular disposition in a will and must amount to coercion beyond the testator’s power to resist*
**influence is sufficiently undue ONLY IF the degree of influence is so great as to prevent free exercise of judgment and choice by the testator AND undue influence MAY be found even if person directing influence does not benefit under the will**
c. a disposition/proclivity/motive to influence for the purpose of procuring an improper favor
d. (causation) a result clearly appearing to be the effect of the supposed influence
i. Opportunity to influence (confidential/sexual/business relationship/attorney etc.);
ii. AND disposition/proclivity/motive to do so; and
iii. The disposition was the result of influence (causation) i.e., the gift would not have been made but for the influence.
iv. (If i. and ii. are proven, then causation is presumed.)
*Look at the susceptibility of T (reliance on the person influencing); “either do this, or…” Harassment + weak condition
In re Estate of Kamesar: SC CASE
(1) susceptibility to undue influence
(2) opportunity to influence
(3) disposition to influence
(4) coveted result

(i) Unjust Distribution:
unjust, unreasonable, or discriminatory reasons for certain gifts in a will are not of themselves sufficient to show undue influence
(ii) Motive:
motive and opportunity by a beneficiary to influence a testator are not alone sufficient to prove undue influence
(iii) Confidential Relationship:
a co

that the interference involved conduct tortious in itself, e.g., fraud, duress, or undue influence. Douglas v. Boyce: SC CASE
2. Useful if time for filing a will contest has expired; caveat -does not apply to a mental incapacity challenge.
3. This is not a will contest, thus the no contest clause does not apply.
4. Can get punitive damages and attorney’s fees. E.g. Marshall(Anna Nicole Smith case, p. 194)
5. S.C. hasn’t yet recognized the tort, but its courts likely will; may have to bring other probate remedies 1st.
a. Some states say you can’t sue for TIWE until you’ve exhausted your probate remedies; in states that do not
say this, though, be careful about trying probate first: if you do probate, and then try to sue in tort, you’re
going to have res judicata issues.
E. Fraud
Fraud occurs where T is deceived by a misrepresentation and does that which the testator would not have done had the misrepresentation not been made. Often same circumstances will give rise to a UI claim. A provision in a will procured by fraud is invalid, and the remaining portion stands unless fraud goes to the whole will or the other portions are inseparable.
1. Elements
Misrepresentation must be done with:
a. Intent to deceive T.
b. Purpose of influencing the testamentary disposition.
2. Fraud in the Inducement
Occurs when a person misrepresents facts, thereby causing T to execute a will, to include particular provisions in the wrongdoer’s favor, to refrain from revoking a will, or not to execute a will.
a. Test: will is invalid if T wouldn’t have left the inheritance or made the bequest had he known the true facts.
b. Ex.#1: O’s heir apparent H, induces O not to execute a will in favor of A by promising O that H will convey the property to A. At the time H makes the promise, H has no intent to convey the property to A.
c. Ex.#2: One child intentionally misrepresents to the mother that the sister is independently wealthy, while in fact is not, and the mother leaves the daughter out of the will.
3. Fraud in Representation/Inducement—Person misreps a fact, thereby causing T to execute a will, include particular provisions, or refrain from executing a will.
Ex: You tell T the Will leaves half to sister and half to you, but in fact it leaves all to you.
4. Fraud in the Execution—Person misrepresents the character or contents of the instrument signed by T, which does not in fact carry out T’s intent. Court will hold the entire will invalid b/c fraud goes to the whole will.
a. Ex: O, with poor eyesight, asks her heir apparent, H, to bring her the document prepared for her as a will so that she can sign it. H brings O a document that is not O’s intended will, knowing it is not the document O wants. O signs it, believing it to be her will.
5. Differences Between Fraud and Undue Influence:
a. Fraud involves intentional misrepresentation/deceit, while UI involves coercion; can have UI w/o fraud, i.e., w/o misrepresentation.