Wills (MEE)

RULE -- when disposition of property depends on order of death and order cannot be clearly established, property of each decedent is disposed of as if he had SURVIVED the other *NOTE: If there is evidence that an heir or beneficiary survived the decedent by even minutes, the USDA does not apply *NOTE: Applies to insurance proceeds too

*SIMULTANEOUS DEATH APPROACH #1* (Majority) -- Uniform Simultaneous Death Act (USDA)

RULE -- under UPC, whenever passage of title depends on priority of death (LAPSE!!), absent a provision in the testamentary instrument to the contrary, a person is deemed to have predeceased the decedent UNLESS the person survives the decedent by at least 120 hours (5 days) **NOTE: Rule applies to all forms of property passage: -Intestacy -Devise (by will) -Beneficiaries under life insurance policies -Joint holders of property w/ right of survivorship w/ decedent (joint tenancies, tenancies by the entirety) **NOTE: When 120 hour rule is triggered, always look for LAPSE issues and potential application of anti-lapse statute

*SIMULTANEOUS DEATH APPROACH #2* (UPC & Minority) -- 120 hour survival requirement NOTE: Applies to EVERYTHING - not just intestacy NOTE: Can be overriden by contrary provision in T's will, but CANNOT be overriden for intestate succession purposes -- the 120 hour rule always applies in determining heirs for intestate purposes

1) Extrinsic document must be in existence at the time the will was executed *EXCEPTION: Under UPC, may refer to written list that disposes of tangible personal property (other than $) - can be written and altered before or after the exection of the will* 2) Will must manifest an intent to incorporate the document 3) Will must "describe the writing sufficiently to permit its identification" NOTE: Holographic wills CAN incorporate non-handwritten documents by reference, assuming 3 requirements are met

3 Requirements for incorporation of an extrinsic document by reference in will

1) False representation made to T 2) Knowledge of falsity by person making statement 3) Testator reasonably believed statement 4) Caused T to execute a will T would not have made but for the misrepresentation

4 Elements necessary to establish FRAUD

1) T must be 18 years old (legal capacity) or older and T must also have testamentary capacity: -Understand nature of action -Understand effect of action -Understand general nature and extent of property -Recognize natural objects of bounty 2) Will must be "ENTIRELY" in T's handwriting *UPC says that some typewritten text is ok, so long as MATERIAL provisions are all in T's handwriting. -"Material provisions" = words identifying the property and the beneficiaries who are to receive it 3) Will must be executed with testamentary intent -NOTE: Means it must be testamentary, not mere written instructions (ex. to attorney) instructing one to make or change a will/codicil for him -NOTE: Most states give effect to INTERLINEATIONS (i.e. handwritten changes to holographic wills, but not to attested wills) 4) T must either sign will or T's name must appear in the will somewhere (in T's handwriting)

4 Requirements for a valid holographic will

1) Unnatural disposition cutting out close family 2) Opportunity -- access to T 3) Confidential or fiduciary relationship between parties 4) Ability of T to resist 5) Whether beneficiary was involved with drafting or execution of the will in question

5 Factors considered for Undue Influence (none of them, or even all of them, are conclusive) *NOTE: Mere opportunity to exert undue influence is not enough

1) Specific devise -- particular piece of property 2) Demonstrative legacy -- $ to be paid by sale of particular piece of property 3) General legacy -- just a gift of a certain amount of $ (with no specific source of the $ being specified) 4) Residuary bequest -- all property not otherwise devised of goes to residue 5) Intestate property -- any property not effectively disposed of in will passes through partial intestacy -Ex. T only leaves life estate in residue, but does not provide for any remainderman -- remainder passes through partial intestacy

5 categories of gifts that can be created by will

1) T must be 18 years old or older (legal capacity) and T must also have Testamentary capacity (*lower standard than contractual capacity*): -Understand nature of action -Understand effect of action -Understand general nature and extent of property -Recognize natural objects of bounty 2) Will must be written 3) Will must be executed with testamentary intent 4) T must sign will (liberally construed) -NOTE: Writing below the signature will never invalidate an otherwise valid will, BUT will only be given affect if it was present at time of execution 5) T's signature must in presence of two witnesses OR T must acknowledge a previous signature in presence of 2 witnesses 6) Two witnesses must sign the will in T's presence (but NOT necessarily in each other's presence) -NOTE: Under UPC, will is valid if notarized, even if not signed by 2 witnesses NOTE: "Conscious Presence" Test - satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place nearby, within the "general awareness and cognizance" of the other parties (even if they couldn't directly see other parties)

6 Requirements for a valid written, attested will -"Conscious Presence" test to determine whether signatures where "in the presence of" NOTE: In most states, no age requirement to be a W -- must simply be competent to testify in court NOTE: Attestation clause is not required, but serves as prima facia evidence that will formalities were satisfied NOTE: Self-proving affidavit involves T and Ws swearing under oath that the requirements for a valid will were satisfied - allows probate of the will without bringing witnesses in to court NOTE: Adjudication of incapacity raises REBUTTABLE presumption of lack of testamentary capacity, but not conclusive, because testator could have had lucid moment when executing the will

RULE -- when a probate estate does not contain enough property/assets to fulfill all of the gifts contained in the will, bequests will begin to ABATE Order of abatement: 1) Intestate property 2) Residuary bequests 3) General legacies 4) Demonstrative legacies 5) Specific devises

Abatement -Rule -Order of abatement

RULE -- ONLY applies to specific devises -- if property T specifically devised is no longer in probate estate at time of distribution, the specific devise is generally considered to be ADEEMED EXCEPTIONS 1) Guardian exception -- if property is gone because guardian sold it after T was deemed legally incompetent, NO ademption -- pay devisee cash = proceeds from sale *(at least to extent that the proceeds were not used on support/healthcare expenses of the decedent)* 2) Executory K exception -- if K to sell property is still executory at time of T's death, NO ademption -- devisee gets cash = net sale price 3) Insured casualty exception -- if property is destroyed and insurance proceeds are collected as a result, NO ademption -- devisee entitled to insurance proceeds from the casualty of the property (but NOT if such proceeds were paid before T died) (*MAYBE*) -- 4) Replacement property - T replaced gifted item with another similar item

Ademption -General Rule -4 Exceptions *GENERAL RULE = court will not consider INTENT (why property is no longer in estate) -- so absent one of the specific exceptions, property is adeemded and devised takes nothing*

Special Ademption rules for certain # of STOCK shares 1) INCREASE (stock split OR stock dividend) -Under UPC, beneficiary takes increased amount *IF* the gift was a specific devise (i.e. "my 40 shares...") 2) Possessory language in specific devisees of stock -If T uses possessory language ("my 10 shares of ABC") -- specific devisee's gift IS ADEEMED if the shares are sold -If T does NOT use possessorY language ("10 shares of ABC") -- devisee's gift is NOT adeemed -- must use funds from estate to purchase 10 shares and give them to the specific devisee 3) If specifically devised shares in one company are exchanged for shares in another (ex. b/c of merger) *UPC RULE -- NOT adeemed -- treated as mere change in form, NOT in substance

Ademption -- Special Rules for Ademption of Stock

• Per capita scheme is generally favored over per stirpes under UPC -- but if will explicitly says testator wants per stirpes, will be given effect • "Per stirpes" distribution denotes the division of an estate by representation, with a class taking the share to which the deceased whom they represent would have been entitled had he been living. No descendant is entitled to take if his parent is alive and entitled to take.

Alternative distribution schemes -- Per Stirpes *(SMALL MINORITY APPROACH)*

RULE -- UPC requires allocation PER CAPITA AT EACH GENERATION -- meaning first distribution is made at first generational level at which there are living takers, but then all remaining shares are pooled together and divided equally amongst descendants at next available generational level Effect: Persons on same generational level will always each take the exact same amount

Alternative distribution schemes -- per capita at each generation *(UPC AND GROWING MINORITY APPROACH)*

1) Latent/Patent Ambiguity -- extrinsic evidence IS admissible to clear up an ambiguous provision that is NOT valid on its face (ex. devise to nephew JP, when T's only nephews are named CJ and TJ) 2) No Apparent Ambiguity -- NO plain meaning rule - court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by CLEAR AND CONVINCING EVIDENCE that both testator's intent and the will were affected by a mistake of fact or law

Ambiguities and Mistakes -Latent / Patent Ambiguity -No Apparent Ambiguity -- NO Plain Meaning Rule *NOTE: Patent ambiguity = doesn't make sense (kjljkll) *NOTE: Latent ambiguity = seems to make sense on its face, but cannot be carried out without further clarification

Slayer -- any person CONVICTED of UNLAWFULLY AND WILLFULLY killing the decedent forfeits all rights in the decedent's estate (treated as if slayer predeceased victim) -EXCEPTIONS: 1) Gifts under will may go to slayer's issue under anti-lapse statute 2) *right of survivorship property (JT, TBE) goes half to victim's estate and half to slayer as TENANTS IN COMMON* Failure to support / Abuse - many states bar parents from inheriting from children they failed to support OR physically/financially abused

Conduct barring certain parties from sharing in INTESTATE estate: -Slayer Statute (2 exceptions) -Parent who failed to support / abused child *NOTE: NOT considered a slayer if you killed testator in self-defense or were found innocent because of legal insanity -- negligence/unintentional killing don't count either -- must have an INTENTIONAL AND FELONIOUS killing*

Foreign wills - UPC says that will is admissible to probate in a jurisdiction if it has been executed in accordance with EITHER: 1) The law of that jurisdiction 2) The law of the state where the will was executed 3) The law of the testator's domicile at the time the will was executed (if different from the actual state in which the will was executed); or 4) The law of the testator's domicile at death

Conflict of law issues: -Admissibility of foreign wills to probate

RULE -- DRR allows court to disregard a revocation which is based on or premised on a mistake of LAW OR FACT if the court is satisfied that, but for the mistake, T would never have made the revocation Applicability -- can only be applied where T revoked previous devise in attempt to INCREASE the devise to that person (court will go back to old amount) -- however, if T revoked and attempted to DECREASE the amount of the devise, court will give devisee nothing

Dependent Relative Revocation (DRR) -General Rule -Applicability

RULE -- any acts by a Testator that have SOME conceivable independent lifetime motive (i.e., are not done SOLELY for testamentary purposes) may impact on the will as well Ex. Will says "car to nephew" and at the time, T drives a clunker, but then he buys a new car just a year before death -- nephew gets the new car because buying a new car has independent lifetime significance outside of its testamentary impact

Doctrine of Independent Significance

GENERAL RULE -- duties, powers, and liabilities of a personal representative are identical to those of trustees Filing suit for wrongful death -- PR does this, BUT any damages collected will pass by INTESTACY, and NOT by the decedent's will EXCEPTION -- up to 4,500 for reasonable burial and hospital/medical expenses incident to the death-causing injury can pass through decedent's will rather than through intestacy Notifying creditors - Must mail/personally deliver notice to KNOWN creditors *3 month SOL to present claim after notice - Must publish notice (once/week for 4 weeks) for all other creditors *3 month SOL -Failure to provide required notice results in 3 YEAR SOL, which is further tolled if creditor is a minor EXCEPTIONS: -secured claims -claims by US government -Tax claims by NC government

Duties of Personal Representative administering estate -General duty -Filing suit for wrongful death -Notifying creditors

GENERAL RULE -- a divorce/annulment (but NOT mere separation) following execution of a will AUTOMATICALLY revokes ALL provisions in favor of the ex-spouse (including devises AND provisions naming them executor, etc.) EFFECT -- excluded ex-spouse is treated as if they were dead for purposes of administering T's estate NOTE: Divorce does NOT automatically terminate ex-spouse's rights under: - Life insurance policies - Revocable inter-vivos trusts REMARRIAGE - if T happens to remarry the same ex-spouse, the spouse's rights under the will are deemed to be reinstated

Effect of divorce/annulment on T's will -General rule -Method of interpreting -Exception for insurance policies / inter vivos trusts (i.e. instruments not controlled by T's will) -Effect of remarriage to same spouse *NOTE: Marriage after execution of a will generally has no effect on will's validity (no omitted spouses rule)

GENERAL RULE -- attempting to alter a provision by crossing it out and writing in a new provision will effectively revoke the entire devise (by physical act), and new attempted devise will not be given effect (but old devise may be through DRR) 2 EXCEPTIONS: 1) The will is subsequently reexcuted OR republished by codicil 2) *BOTH* the change AND underlying will are hologrpahic

Effect of subsequent alterations to a validly executed will (known as an "interlineation") -General rule -2 Exceptions

Definition -- becomes operative when P loses capacity, appointing agent to make healthcare decisions for P Execution (same as living will) Revocation -Automatically by divorce/legal separation from agent -Otherwise, but written/oral notice to EITHER the agent OR the P's healthcare provider NOTE: Agent is NOT civilly OR criminally liable for decisions made if made in good faith

Healthcare Directives (Durable Healthcare Power) -Definition -Execution -Revocation -Liability of agent

Definition -- statement of individual's desires with respect to life-sustaining procedures in the event that the individual becomes terminally ill or is in a persistent vegetative state Execution -In writing -Notarized -Signed by a competent adult testator -In presence of two adult witnesses who are not related to T or T's spouse, not T's physician, not associated with ANY healthcare provider, and not entitled to take under T's estate Revocation -- manifestation of intent to revoke at any time before death (without regard to mental/physical condition)

Healthcare Directives (Living Will) -Definition -Execution -Revocation

When will is unavailable (but NOT revoked), can still be probated if 3 REQUIREMENTS are met: 1) Due *execution* of the will is proved in normal way 2) *Contents* of will are clearly & distinctly proved by either: -A copy of the will; OR -Testimony of a witness 3) Reason for absence of the will is adequately explained NOTE: If lost wills statute requirements are NOT met, effect is to treat will as revoked (b/c will can't be probated)

If proven that will has not been revoked, but is nonetheless unavailable (ex. it was destroyed accidentally OR requirements for revocation were not met), how can the will be probated? -"lost wills" statute -Effect if "lost wills" statute can't be satisfied

RULE -- look to generational level with surviving heir to make initial division, but then don't redivide at next level - basically per stirpes after initial division

Intestacy -- per capita with representation *(MAJORITY APPROACH)*

Priority is as follows: 1) T's descendants 2) If no descendants, to surviving parents 3) If no descendants OR parents, to siblings & their descendants 4) Grandparents 5) Nearest kin

Intestacy -- priority for any share NOT going to spouse NOTE: Half-siblings count as siblings for purposes of intestate succession

4 different situations: 1) T leaves spouse, but NO parents and NO issue -Spouse simply gets the ENTIRE estate 2) T leaves spouse AND descendants, all of whom are also descendants of surviving spouse -Spouse gets ENTIRE estate 4) T leaves spouse AND descendants, at least one of whom is not also descendant of surviving spouse -Spouse gets some fixed amount (100,000 under UPC) first, then one half of any excess

Intestacy -- surviving spouse's share (4 situations) *NOTE: For PERSONAL property, apply intestacy laws of decedent's domicile at death; for REAL PROPERTY, apply intestacy laws of situs of property*

RULE -- when a beneficiary named in the will dies before the testator OR within 120 hour after testator (UPC), the gift LAPSES EXCEPTION -- Anti-lapse Statute -- when the predeceasing beneficiary is T's grandparent OR a lineal descendant thereof who leaves issue (lineal descendants), beneficiary's share goes to said issue IF said issue survive T -NOTE: Goes to issue even if predeceasing beneficiary has executed will devising property to someone else -NOTE: Anti-lapse statute does NOT cover devises to a spouse that predeceases T Lapse and class gifts -- when there is a gift to a class and some member predeceases T, that member's share lapses and the surviving members of the class take accordingly

Lapse -General lapse rule -Anti-lapse statute -Lapse rule for class gifts *NOTE: Gift to charity that lapses can also be saved by cy pres doctrine if T had general charitable intent - court can give it to charity that most closely embodies T's original intent* *NOTE: Court will not apply anti-lapse statute where testator conditioned gift on deceased beneficiary's survival*

NOT RECOGNIZED UNDER THE UPC!

Oral wills

RULE -- intestacy statute ONLY applies to the "probate estate" (estate that could have been controlled by will had T chosen to execute one) -- does NOT include: 1) life insurance proceeds 2) property held in trust (even if trust is revocable) 3) right of survivorship property 4) property T did not own at death

Property subject to intestacy

RULE -- party may renounce gift in part OR in whole if done so IN WRITING that is SIGNED and ACKNOWLEDGED by renouncer within 9 MONTHS after death of the decedent EFFECT -- renunciation causes property to pass as if renouncing party had predeceased decedent, unless decedent's will specifically provides otherwise -NOTE: Lapse issue and possible anti-lapse application RULE -- generally the motives of the renouncer in declining the gift are immaterial -- HOWEVER, if he receives a fraudulent benefit fro the renunciation, it may be set aside by the court (ex. = dodging creditors)

Renunciation/Disclaimer -Requirements -Effect -Voiding renunciation if renounced for fraudulent reasons *NOTE: Once you accept, you can no longer disclaim (i.e. can't change your mind -- it's too late) *NOTE: Disclaimers are irrevocable -- can't take them back

Simply state in subsequent, validly executed will that intent is to revoke all prior wills

Revocation by express written intent

RULE -- where a subsequent, validly executed, codicil OR additional will does NOT, by its terms, revoke a valid existing will, interpretation is as follows: - To extent possible, we interpret the 2 will in conjunction - To extent a conflict between them arises, we give effect to the subsequent (most recent) instrument -- therefore previous instrument is revoked by inconsistency to the extent of such a conflict

Revocation by inconsistency QUESTION = What are interpretation rules when a subsequent codicil OR will exists, BUT the subsequent instrument does NOT, by its terms, revoke the first

2 requirements: 1) Intent to revoke 2) Physical act of revocation (burned, torn, cancelled, obliterated, or destroyed) -NOTE: Physical act on one will (when executed in duplicate) is sufficient to revoke by physical act -NOTE: If physical act is crossing out will (and/or writing "void"/"cancelled"), writing must touch at least SOME of the language of the real will (can't be copy, or on the back) *PRESUMPTION: If will was last seen in T's possession and control AND is not found after T's death, PRESUMED that T destroyed will w/ intent to revoke it*

Revocation by physical act of Testator -2 requirements -Presumption *NOTE: If physical act is crossing out/ writing on a will, must actually touch the text of the will to be effective

2 requirements -- Revocation must be BOTH: 1) At T's direction 2) In T's presence

Revocation by physical act of another (by proxy) -2 requirements

Homestead Allowance - under UPC, spouses gets $15,000 cash allowance rather than right to live in family home for as long as spouse chooses Family Allowance - reasonable allowance in money out of estate for maintenance of family during administration of estate Gets certain amount of exempt property in fixed amounts (household furniture, automobile, furnishings, appliances, personal effects, etc.)

Special Rights provided for surviving spouses -Homestead allowance -Family Allowance -Exempt property NOTE: Can ALWAYS get it -- in addition to intestate, but charged against share under will

RULE (minority, UPC) - spouse married after execution of decedent's will may claim an intestate share UNLESS EITHER: 1) It's clear from the will the omission was intentional 2) T made other provision for spouse be transfer outside the will and the intent that the transfer be in lieu of provision in the wil

Special inheritance rule - Pretermitted spouse

RULE -- a pretermitted child (one born OR adopted AFTER parent last executed will) is entitled to take an intestate share UNLESS - 5 EXCEPTIONS: 1) Appears from will that omission was intentional 2) Will provides for the child (amount is irrelevant) 3) T had other children at the time of execution and did not provide for them in will either 4) T leaves entire estate to his surviving spouse 5) T made provision for child outside his will by another transfer that takes effect at death (ex. his life insurance) NOTE: Doctrine of Republication by Codicil -- Child is no longer a pretermitted child (and thus has NO rights as such) if T executes either a new will OR a codicil after child is born/adopted

Special inheritance rule -- Pretermitted Children -Rule -5 Exceptions -Doctrine of Republication by Codicil

Illegitimate children 1) ALWAYS can inherit from MOTHER'S intestate estate 2) Can only inherit from FATHER'S intestate estate IF either: -Father legitimates child by marrying the mother -Father formally acknowledges paternity -*Father is adjudicated to be child's father during father's life OR AFTER father's death, DURING PROBATE PROCEEDINGS (by clear and convincing evidence)* Step-Children -- generally have NO rights to inherit from step-parent under intestate succession UNLESS adoption by estoppel exists (step-parent agreed to adopt and never did) Adopted Children -- 2 Rules: -Have full inheritance rights from adoptive parents -Rights to inheritance by biological parents are completely extinguished UNLESS biological parent marries another (step-parent), who then adopts child -NOTE: Many states have EQUITABLE ADOPTION statutes that allow "adopted" child to take from "adopted" parent even if no formal adoption occurred, but not vice versa Unborn Takers -- while unborn children generally cannot claim as an heir, an exception is made for posthumous children and other unborn relatives that are born within 10 lunar months (280 days) of testator's death

Special inheritance rules -Illegitimate children -Step-children -Adopted children -Unborn takers (posthumous children and other unborn takers)

Advances on Intestate Share (Intestate Estates) -Gifts to non-spouses are PRESUMED NOT to be advancements on intestate shares unless intent to have it treated as such is in writing -Gifts to spouses are NEVER treated as advancements on intestate shares unless intent to have it treated as such is in writing Doctrine of Satisfaction (Testate Estates) -Gifts to children (but NOT others) are PRESUMED to be in satisfaction of childrens' interests under T's will, but ONLY if subject matter of advance is the same as the subject matter of the devise under the will CALCULATION 1) add value of advancement (at time gift was made) back to the estate -- creates "hotchpot" 2) divide hotchpot according to applicable scheme, counting person who received advance as having already received amount = value of advance at time gift was made

Special inheritance rules -- advances on takers share -Intestate estate -- Advances on Intestate Share -Testate estates -- Doctrine of Satisfaction -Calculation if either doctrine applies *NOTE: Satisfaction can only apply if gift was made AFTER will is executed -- if made before, can never support finding of satisfaction*

1) Elective share -- maximum elective share is 50% - amount spouse is eligible for increases by about 3 percent a year until they have been married 15 years, at which point it maxes out *NOTE: This is in addition to exempt property, family allowance and homestead (or homestead allowance)

Special rights provided for surviving spouses -Elective share **NOTE: Elective share is NOT automatic -- surviving spouse must elect to take it within 6 months of issuance of letters of administration -- it is also waivable (even without consideration) **NOTE: Elective share may be waived by written K after full disclosure

RULE -- a specific devise of encumbered property is NOT entitled to have the encumbrance paid out of the residuary estate UNLESS the will clearly shows such intent -NOTE: General direction in the will to pay debts is NOT enough to show this required intent -- if this is all that it says, specifically devised property will pass WITH encumbrance

Specific devises of encumbered property

YES -- can disinherit your heir by fiat (minority, UPC approach), even if you don't leave a will

Under UPC, does one have the ability to assure that someone who would otherwise be entitled to take via intestate succession cannot take?

1) Attorney messes up revocation of a will 2) Attorney messes up execution of a will

Under Lucas v. Hamm, an attorney can potentially be liable for negligence regarding wills in which 2 situations?

1) Old will still exists (i.e. it has not been destroyed) 2) No evidence that revival of old will was not T's intent 3) 2nd will was revoked *by physical act*

What are the the requirements for revival of an old will under the UPC (other than by republication or reexecution? *NOTE: Some jurisdictions never allow revival of old wills

RULE -- will (or specific will provision) is only revocable to the extent the extent that the testator has not contracted to make it irrevocable

What is only situation in which a will (or specific will provision) becomes irrevocable?

VALIDITY -- fact that a witness is interested NEVER affects the will's validity EFFECT ON DEVISE TO INTERESTED W: -RULE - under UPC, no effect - interested witness will take under the will no matter what (different from majority approach where interested W will not take if there aren't 2 disinterested Ws or W would not be an heir)

What is the effect on probate of a will if one of the attesting witnesses is INTERESTED (takes under the will)? NOTE: Because holographic wills don't require any witnesses, there will never be an interested witness under such a will

1) Defective Execution -- one or more of the requirements for valid execution is missing (invalid on its face) 2) Lack of Testamentary Capacity -- contestant proves either: - T was not 18 at the time the will was executed - T either: *Did not understand nature of the act he was doing *Did not understand the effect of the act he was doing *Did not know the nature/character of his property *Did not know the natural objects of his bounty *NOTE: Being adjudicated legally incompetent OR insane is NOT conclusive that you lacked capacity *Insane delusion = special type of lack of capacity - T is otherwise sane BUT will is product of an insane delusion, having no basis in fact or reason -- will ONLY destroy capacity if there is a connection between the insane delusion and relevant property disposition 3) Undue Influence -- contestant proves 3 required elements: -Existence and exertion of the influence -Effect is to overpower the mind and will of T -Result is a will that would not have been executed BUT FOR the influence 4) Fraud -- contestant must prove that EITHER: -Misrepresentation is made as to the nature and contents of the instrument -Testator is induced into making a will or gift by misrepresentations of fact that influencer her motivation

Will Contests -- 4 grounds for challenging a will *NOTE: Under UPC, there is a presumption of undue influence when principal beneficiary BOTH: 1) stands in confidential relationship w/ testator (attorney, priest, doctor, etc.) AND 2) was active in drawing, procuring, or executing the will*

1) If contestant wins -- no problem -- contested clause is invalid 2) If contestant loses: -No contest clause NOT enforced if challenge was in good faith and based on probable cause (reasonable) -No contest claus IS enforced if challenge was NOT in good faith and not based on probable cause (unreasonable)

Will Contests -- effectiveness of "no contest" clauses (seeking to punish any beneficiaries who contest will) *NOTE: Must have standing (heir who would take in intestacy if will was invalid or beneficiary of prior will who would take if current will is invalid) *NOTE: Challenger of will has burden to prove will is invalid

RULE -- contracts to make, not make, or not to revoke a will are valid -- but party seeking to enforce the K must prove offer and acceptance, consideration, subject matter, time and scope of performance. Writing Requirement: -If subject matter is wholly PERSONAL property -- oral agreement can be enforced -If subject matter involves disposition of REAL property -- must be in writing to be enforceable **NOTE: adequately describing the real property in a will is deemed to be adequate writing Remedies: -K can be enforced by a suit for specific performance -Court may impose a constructive trust upon the appropriate beneficiaries under the will in favor of the P

Will Contracts -- Contracts to Make, not make, or not revoke a Will NOTE: Future beneficiary's promise to not challenge a will IS sufficient consideration to support contract not to revoke a will NOTE: K's prohibiting revocation of a will are STRICTLY CONSTRUED -- thus if K does not expressly prohibit transferring property by deed before T dies, T can do this and it will NOT be deemed to breach the K