Class 17

A. Contesting the Will: Testamentary Capacity

a. Where law provides ambiguous rule that judges are to apply, judges will
i. Take that general rule and develop a multi-part test in the hope that the test
will solve the problem generated by the vagueness of the rule
ii. Consciously/unconsciously use independent/unstated/external criteria for
deciding cases under the general rule
b. Still end up deciding cases in predictable wayswill depend on how the testator
distributed assets in the will
i. The more that a testator’s disposition deviates from the pattern of intestacy,
the more likely that a judge will find a testator lacked testamentary capacity
ii. Inconsistent with commitment to testamentary freedom
c. UPC 2-501: an individual of 18 years or more who is of sound mind may make a will
d. Rest. Third of Property 8.1: 3-part test
i. A person must have mental capacity to make or revoke a will
ii. Testamentary capacity: testator 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
iii. And must be capable of relating these elements to one another and forming an
orderly desire regarding the disposition of the property
e. Barnes v. Marshall SC Mo 1971
i. Witness testified testator was of unsound mind
ii. Medical testimonyunsound mind
iii. With respect to his daughter, gave only $5 out of $500kdeviating from
intestacy
1. Proves not operating under a mistake about life/death of child$5 was
gift he wanted to make
f. Wilson v. Lane SC Ga 2005
i. Person mentally capable if she has sufficient intellect to enable her to have a
decided and rational desire as to the disposition of her property
ii. Jewel GreerEccentric, aged, and peculiar but understood and selected every
beneficiary
1. Early stages of Alzheimer’s, need of guardianship
2. 16 of beneficiaries were close relatives, one was caretaker
3. Close to intestacy distributiontestamentary capacity
g. Dougherty v. Rubenstein Md 2007
i. Insane delusion rulewill invalidate will for lack of capacity if delusion
produced the disposition made in the will
ii. Delusional when held in the face of evidence that to a rational person would
refute the beliefbut when is it insane?
iii. Will left son out
iv. Here, delusion not inexplicable or insaneangry at son for sending to boarding
house, believed he stole from him
 1. Either from mental illness or from anger
v. Significant deviation from pattern of intestacy, will gave him nothing
vi. For there to be an insane delusion, person must suffer from something we can
call insanity and delusion is product of insanity
h. Gonsalves v. Superior Court CoA Cal. 1993
i. Duty of atty to determine testamentary capacity of a client seeking to make a
will?
1. Lucas v. Hand: intended beneficiaries can recover from lawyer when will
is negligently drafted for what they would have gotten if it was drafted
correctle
ii. Ct: atty liability should not extend in favor of those disinherited by testator
without testamentary capacity
1. Disinherited person has a remedychallenging capacity
2. A different result would impose a burden on the T&E bar that would
shift to clientswould then have to prove their sanity
i. 3-407 of UPC: In contested cases, contestants of a will have the burden of establishing
lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or
revocation

Class 18

A. Undue Influence: confidential relationship between influencer and testator + suspicious

circumstances
a. Where lawyer for executor is confident of victory, incentive to get executor to settle is
reduced
b. Lawyer for executor must know that if case doesn’t settlereduce size of net probate
estate
i. Opposite incentives
c. Usually brought when beneficiary of the will in a confidential relationship + suspicious
circumstances
d. Increased probability when testamentary capacity is also dubious
e. Haynes v. First Nat’l State Bank of NJ SC NJ 1981
i. Undue influence = mental, moral, or physical exertion which has destroyed the
free agency of a testator by preventing the testator from following the dictates
of his own mind and will and instead accepting domination and influence of
another
ii. With 2 factors, easy to findlook almost entirely to suspicious
circumstancesoften case where a lawyer gets the testator to make a gift to
the lawyer or gets the testator to make a gift to the lawyer’s client(s)
1. What makes it suspicious is pattern of donation in the willgift is
non-trivial (MRPC 1.8clawyer shall not solicit any substantial gift
from a client)
iii. 1.7 concurrent conflict representing both child and mother, 1.8 violated by
directing gifts to his clientsstrong presumption of undue influencewill
invalid
 f. Will of Moses SC Miss. 1969
i. Will made atty principal beneficiary, testatrix both dated him and used as atty
ii. Moses did seek independent counsel, but advice was not meaningfullawyer
wrote down what she told him, did not really advise
iii. Undue influence
iv. Dissentshould be allowed to dispose of property as she intended, no evidence
atty told her anything/influenced her
B. Fraud
a. Difficult to prove because it has so many elements, but often a secondary part of other
claims
i. False statement of fact
ii. Known to be false by the speaker
iii. Relevant to the transaction in question (material)
iv. Made with intent of deceiving person being defrauded
v. Must be successful/believed
vi. Must cause person deceived to do something they wouldn’t otherwise do that
has financial/criminal repercussions
C. Intentional Interference with Expected Inheritance
a. Used to be thought that mere expectancy has no value as a matter of law, because
testator remains free to change their mind about giftsIIEI gives expectancy cash value
i. Expectation of receiving inheritance
ii. Intentional interference with that expectancy by 3d party
iii. Independently wrongful or tortious conduct other than interference with
inheritance
iv. Reasonable certainty that would get inheritance but-for tortious interference
v. Damages
b. Unavailable to people who could have gotten inheritance out of probate process rather
than tort suit
c. Takes finality that used to attach to distributed estates and call it into question
d. Why not just use fraud claim?
e. Beckwith v. Dahl Cal. Coa 2012
D. Nina Zagat given estate handling of Johnson / No Contest Clauses
a. Seward decided to leave everything to late in life second wife, excluded children
b. Get from testator letters to kids stating intentions or video that conveys that person has
testamentary capacity and is not subject to undue influence, makes settlement in favor
of estate more likely
c. Make sure there were people who knew testator well and were willing to go on the
record about his capacity
d. No-contest clauseif anyone contests this will, that person is disinherited
i. UPC 3-905unenforceable if probable cause exists for instituting proceedings
ii. Res 3d 8.5provision in a will purporting to rescind a donative transfer to a
person who challenges validity is enforceable unless probable cause existed to
instituting the proceeding
 iii. What is probably cause for challenging a will?  exists when, at the time of
instituting the proceeding, there was evidence that would lead a reasonable
person, properly informed and advised, to conclude that there was a substantial
likelihood that the challenge would be successful. A factor that bears on the
existence of probably cause is whether the beneficiary relied upon the advice of
independent legal counsel sought in good faith after a full disclosure of facts.
The mere fact that the person mounting the challenge was represented by
counsel is not controlling however since the institution of a legal proceeding
challenging a donative transfer normally involves representation
1. Challenges are overwhelmingly likely to fail
2. If you lose challenge, lose inheritancecosts reduced to the estate
E. No Contest Clauses p. 467
a. Elective share challenges aren’t affected by a no-contest clausedon’t violate clause by
seeking an ES
b. Rule against perpetuities challenges are finedon’t violate clause
c. Construction challengeDoesn’t affect no contest clause
d. Executor challengenot affected by NC clause
e. Joint tenancy determinationnot affected by NC clause
f. Creditor’s claim against the estateprobably unaffected by NC clause
g. Action against sister for tortious interference with inheritancetend to be brought
after probate is closed
h. Determination of whether beneficiary of retirement accountwill be affected by NC
clause
i. Seeks to probate subsequent will leaving him moreis affected by the NC clause
j. Cooperates with lawyers contesting the will on behalf of a child receiving a smaller
sharenot affected by NC, HE is not contesting the will
F. Could address most of these situations in a drafted NC clause except for the ES claim and RaP