CAPACITY : 18yr & SOUND MIND:

sound mind: knows 1) NATURE and EXTENT of own property 2) the NATURAL OBJECTS of his BOUNTY 3) the NATURE of the testamentary ACT he or she is performing 4) how 1-3 relate to constitute an orderly plan of disposing of his or her property. TEMPORAL REQUIREMENT (lucid intervals OK) Note: 1) T only needs ABILITY to know 2) Low threshold and STRONG presumption (less than for k) 3) BOP: Minority evidentiary burden rule: putting the burden of proof/persuasion on the
proponent to show testamentary capacity (Washburn). Majority evidentiary burden rule: once the proponent adduces prima facie evidence of due execution, the party contesting the will on the grounds of lack of capacity has the burden of persuasion.(Wilson, Breeden) 4) A lawyer may not draft a will for a person the lawyer believes to be incompetent, but the lawyer may rely on her own judgment of the client s capacity. 5) B/c of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In that case, the lawyer should take steps to preserve evidence regarding the client s testamentary capacity. Ante-mortem probate (a.k.a. living probate ) (handful of jx) allows probate of a will during a testator s life. P can institute during Ts life an adversary proceeding to declare the validity of a will and the testamentary capacity and freedom from undue influence of the person executing the will

DEFECTS iNSANE dELUSION(fact sensitive): false perception of reality that T adheres to against all reason and evidence 2 contrary. MAJ: if rational person could not reach the same conclusion under the circumstances, the belief is an insane delusion. MIN: if there s any factual basis it s ok. Causation: Maj: BF causation (some use materially affect will s provisions) Min: may have affected T s disposition of prop. Compare Mistake: generally courts do not correct mistakes. This would open the door to everyone who felt left out (need to stand to gain from bringing action in order to have standing)

(which test would birthers fail? Both?)

Undue INFLUECNE: one substitutes their intent for T s. P must show 1 T was susceptible 2 D had opportunity 3 D had motive 4 causation. Presumed in many jx: BOP shifts to D if P proves 1) D had T were in a CONFIDENTIAL RELATIONSHIP 2) T was of WEAKENED INTELLECT 3) D takes BULK of estat Usually proved by circumstantial evidence

No contest clause: T may include this in will that provides if a BENF. CHALLENGES will or any provision in it the BENF. BARRED FROM TAKING under will. Some jx: 1) not enforced if probable cause for challenge 2) challenge is based on forgery, revocation or misconduct by drafter.

Fraud: An intentional misrepresentation, made purposely to influence the T s Test Scheme, which causes the testator to dispose of his property in a way which he or she otherwise would not have (causation) Fraud in the execution occurs if person intentionally misrepresents the nature of the document that T signs. Fraud in the inducement occurs if a person intentionally misrepresents a fact to the T to induce the T to induce the T 2 execute, amend, or revoke a will in reliance on misrepresentation. Duress: wrongdoer performs, or threatens to perform, a wrongful act that coerces the donor into making a donative transfer he or she would not have otherwise made. Tortious interference with an expectancy: 1) EXPECTANCY 2) RSNBL CERTAINTY would have been REALIZED BF INTERFERENCE 3) INTENTIONAL interference with the expectancy 4) TORTIOUS CONDUCT (fraud, duress, undue influence); 5) DAMAGES

Vocab

i. Misdescription doctrine Court takes extrinsic evidence to determine extent of misdescription and then strikes the words that constitute the misdescription. 1. Integration of Wills: o papers present at time of execution, intended to be part of will, are integrated into will. Issue when papers are not physically connected and no internal coherence. 2. Republication by Codicil: best way to modify a wills. o Will treated as if executed when most recent codicil was, unless effect of doing so would be inconsistent with T s intent. Only applies to prior validly executed will. 3. Incorporation by Reference: Not law in CT. o Writing in existence when will executed may be incorporated by reference if language of will manifests T s intent and describes writing enough to identify it. Doesn t need to be attached.