Examples of Intestate Distribution

Examples of Intestate Distribution

13. Wills

    1. Overview

       1. Validity Requirements

          1. Decedent must have testamentary capacity

          2. Decedent must be free of undue influence

          3. Will must be executed in accordance with particular statutory formalities (SC erases these if have T’s intent)

       2. Burden of Proof

          1. Testamentary Capacity – on contestant to show that the decedent did not have testamentary capacity

          2. Undue Influence – on contestant to show that decedent was subject to undue influence

          3. Execution – on proponent of the will to show that the will was properly executed (person who wants the will)

             1. THEN burden is on Contestant to show that something was NOT done correctly (after preliminary burden to show basic will requirements)

             2. If self-proven, conclusive presumption that will was properly executed in accordance with statute> burden on contesatnt to show, not really a self-proving will

       3. Application to Revocable Trusts

          1. Generally, principles of testamentary capacity & undue influence for wills also apply to revocable trusts

    2. Testamentary Capacity – mental capacity to make will

       1. Testator MUST be at least 18 years old (age of majority)

       2. Focus = 3-prong Common Law Test – must satisfy all three to have testamentary capacity (3 building blocks)

          1. Must know/identify natural objects of bounty–does testator understand who closest living relatives are?

          2. Must know what property is owned – does testator understand what property he/she owns?

             1. An understanding – does not have to be down to the penny

          3. Must understand nature of testamentary act – does testator understand that by signing will, he/she is leaving property to someone at death?

          4. DO NOT look at labels (e.g., conservatee)

          5. DO NOT look at diagnosis (e.g., Alzheimer’s)

             1. Ok to be eccentric, physically weak, distrustful, pessimistic, less than right of mind, less than alert

       3. Burden of Proof– on contestant of will to show testator lacked test. capacity – preponderance of evidence

       4. State Law

          1. Utah – no statute address testamentary capacity – follows the 3-prong common law test

          2. CA

             1. §§ 810-812 – Due Process and Competence Determinations Act (DPCDA)

                1. Sets forth specific objective criteria to determine whether someone has testamentary capacity

                   1. 
                      Follows the spirit of the 3-prong common law test
                      
                      1. 
                         Ex: 810(c) need evidence form person’s personal functions rather than diagnosis
                         
                      2. 
                         Ex: 811(d)- mere diagnosis shall not be sufficient itself, to show lack of test. capacity
                         

                2. Applies more broadly in CA than just test. capac–measures capacity to enter any legal transaction

                   1. 
                      entering into contracts, property, getting married, making medical decisions, exec. wills/trusts
                      

             2. § 6100.5 – looks like 3-prong common law test – applies ONLY to wills

                1. If testamentary capacity is an issue in CA  really need to satisfy both §§ 810-812 and § 6100.5 tests to determine if someone does not have testamentary capacity

             3. § 6100(a) – must be 18 to make a will

             4. § 6100(b) – convervatee can make will–illustrates you don’t look to labels to determine test. capacity

       5. Insane Delusions

          1. Even if pass 3-prong test, still may not be found to have test capacity if suffer from an insane delusion

          2. Insane Delusion

             1. An irrational belief;

             2. That affects the testamentary disposition (e.g., will/trust); AND

                1. NOT: if the insane delusion does not affect will/trust  then, insane delusion does not matter

             3. The person cannot be persuaded otherwise

       6. Showing/Challenging Testamentary Capacity (evidence to look for after death)

          1. KEY = timing is everything  evidence needs to be as close to time estate plan was signed as possible

          2. Types of Evidence

             1. Correspondence w/attorney (about what client wanted)--Attorneys Notes and Testimony

             2. Journal (from day will was signed or around same time, and it’s very lucid)

             3. Other acts that show alertness

             4. Family and friends testimonies

             5. Doctor’s records

             6. Face of Will – what will says (e.g., is it a rambling diatribe, etc.?) (holographic will)

             7. Unnatural Disposition– e.g. if testator left stuff to someone/organization they did not really have a connection w/during life (ie. imaginary friend bequest? OR inverse: identified all relatives correctly?

             8. Consistency with prior wills

       7. Steps to Take at Planning Stage to Avert a Contest of Testamentary Capacity

          1. KEY = timing is everything  evidence needs to be as close to time estate plan was signed as possible

          2. Steps to Take (most effective to least effective)

             1. Evaluation by Geriatric Psychiatrist immediately before signing documents (expensive)

                1. Two-edge sword

                   1. 
                      Certificate from psychiatrist will be very influential (video could be pretty influential)
                      
                   2. 
                      But what if the person is having a bad day?
                      

             2. Videotaping the Signing of a Will

                1. Same Two-edge sword as have with Geriatric Psychiatrist

             3. Memo to File by Attorney

                1. E.g.noting there’s no doubt client had test. capacity b/c. . . AND client didn’t want> pay for i & ii

          3. Explanation in Will

             1. Two-edge sword

                1. Can provide explanation of a certain, seemingly unnatural disposition (e.g., disinheriting a child)

                2. But what if the reason for the disposition is wrong?> if facts are wrong> backfires

    3. Undue Influence

       1. Common Law Rule – followed in UT & CA (little stat guidance for most states–mostly case law BUT CA has embellished common law with statutes)

          1. A will that is the product of undue influence is NOT VALID

          2. A will is the product of undue influence if it reflects will of perpetrator and does not reflect will of testator

             1. NOTE: prop does NOT have to necessarily go to perpetrator  just show that testator made disposition that he/she would not otherwise have made (No need to show physical coercion)

             2. MUST be causal connection between something perpetrator is doing and will’s alteration

                1. Needs to be more than mere influence; must so overpower testator as to destroy his free agency

             3. Ex– neighbor who takes testator to store every week says “if you don’t leave your house to my brother, I don’t think I can take you to the store anymore”

                1. Testator> dependent on neighbor  will would then reflect desire of perpetrator NOT of testator

       2. California Statutory Embellishment of Common Law – common law is the still the primary rule

          1. § 6104 – codifies the common law  a will that is the product of undue influence is INVALID

             1. Talks in terms of both entire will and portions of a will (UTAH AND CALIFORNIA)

                1. If entire will is the product of undue influence  entire will is invalid

                2. If part of a will (e.g., particular bequest) is the produce of undue influence  that part is invalid

          2. § 6112 – Interested Witness

             1. Interested Witness = witness who receives a bequest under the will (witness = BFY)

             2. Rebuttable presumption = interested witness procured bequest by undue influence

                1. If interested witness rebuts presumption  interested witness gets his/her bequest under will

                2. If interested witness CANNOT rebut the presumption  special rule

                   1. 
                      Will is still valid AND specific bequest to interested witness is not invalid BUT interested witness only receives what he/she would have received if the will were invalid (intestacy or prior will) BUT this will be less?????????????
                      

                3. Exception – rebuttable presumption DOES NOT apply if the interested witness is receiving property solely as the fiduciary in a fiduciary capacity

                   1. 
                      “I leave Million to Kate Knowles, Trustee of Haley Jankowski Trust” Kate can be witness w/o being interested witness.
                      

             3. Possible problems with § 6112

                1. What if interested witness would get more? – statute seems to allow (TIPPETT WOULDN’T ALLOW)

                2. What is meant by “solely in a fiduciary capacity”? does § 6112 apply if interested witness is receiving prop in fiduciary capacity for his own benefit (e.g. trustee of trust for his own benefit)?

                   1. 
                      Maybe want 6112 to apply if BFY is child, is the fiduciary or spouse of Witness?
                      

                3. What does “would have received if the will were invalid” mean?

                   1. 
                      If it was the only will ever made = fairly simple  would invoke rules of intestacy
                      
                   2. 
                      If testator had prior will = more difficult  statute seems to direct that interested witness would receive what he/she would have received under prior will
                      
                      1. 
                         But how do you know that prior will is a valid will that should be executed> probate? wouldn’t you have to do hypothetical probate of prior will to determine interested witness interest?
                         

             4. NOTE: interested witness> exclusive to CA; UT DOES NOT matter if interested witness- 2-505(2)

          3. § 21350 – Disqualified Persons (disqualified from receiving any prop under will)

             1. Disqualified Persons include:

                1. Drafter of will/any instrument

                2. Anyone in same law firm as Drafter (employee or boss)

                3. Anyone who has fiduciary rlshp w/testator (e.g., conservator/trustee) and transcribes instrument or causes it to be transcribed

                4. Anyone who is care custodian of testator (nurse in nursing home)

                5. Spouse or predeceased spouse of any of the above

                6. Relatives w/in 3rd degree of any of above – based on consanguinity chart (Blood or Marriage)

                   1. 
                      3rd Degree Relative; 3rd Degree Relative of Spouse; Spouse of 3rd Degree Relative
                      

             2. Rebuttable Presumption = Disqualified persons exercised undue influence

                1. Can ONLY rebut this presumption by manner prescribed in § 21351

                2. If you fail to rebut this presumption  you are disinherited  you DO NOT get the bequest

             3. § 21351 – Exceptions to § 21350 – Can rebut the § 21350 presumption by showing:

                1. You are within 5th degree OR an heir of testator – based on consanguinity chart

                2. You have a Certificate of Independent Review

                   1. 
                      Certificate signed by another attorney that says there was no undue influence
                      
                   2. 
                      Typically done when the attorney is getting a bequest
                      

                3. Court approval

                4. Bequest does not exceed $3,000

                5. Bequest was made by an instrument executed by a nonresident of CA who was not a resident at the time the instrument was executed and the instrument was not signed within CA

       3. Burden of Proof

          1. General–burden on contestant of will to show testator> subjected to U.I. – preponderance of evidence

             1. UNLESS CA: Interested Witness & Disqualified Person

          2. Shifting Burden – burden of proof will shift to proponent of the will to show the will WAS NOT the product of undue influence if the contestant can show ALL 4 things:

             1. There’s a Confidential Relationship (on which T relied)

                1. Confidential Rlshp = relationship of trust (rlshps are issues of fact)

                   1. 
                      Might be confidential – e.g., parent/child, patient/doctor
                      
                   2. 
                      Presumed to be confidential – e.g., attorney/client, CPA/client
                      

             2. Perpetrator must’ve been in superior position in rlshp of trust>testator relied upon/trusted perpetrator

             3. The alleged perpetrator MUST have participated in the making of the will

                1. Could be something blatant – e.g., alleged perpetrator types will for testator to sign; drafts it

                2. Could be some other act – e.g., alleged perpetrator selected lawyer and set up will appointment w/draftor OR drove testator to lawyer’s office

             4. The alleged perpetrator MUST have unduly profited

                1. E.g. if alleged perpetrator receives more under will than would receive under rules of intestacy

          3. Practical reality = undue influence is very difficult to prove

             1. Testator is dead  you are now trying to piece together circumstantial evidence after the fact

             2. Very fact specific  hard to define how much evidence is needed to show/prove undue influence

       4. Bequests to Attorneys

          1. Two SEPARATE inquiries (violating one doesn’t nec. mean you violated the other)

             1. Is the bequest valid? CA: §21350 / UT: CL

             2. Is the attorney subject to professional discipline for drafting a will for which he/she is BFY? RPR

1. Showing/Challenging Undue Influence (evidence to look for after death); similar to Test. Capacity

   1. Inconsistency with previous wills made

   2. Any Unnatural disposition (if have two kids and leaving all to neighbor) weird things

   3. Vulnerability of testator

   4. Evidence of actual undue influence

   5. Opportunity to exercise undue influence – e.g., was testator reliant on someone? live together?

   6. Nature of relationship (how much participation did alleged wrong-doer have?)

   7. Motive

   8. Hurried Changes (right before death) OR Opportunity to revise the estate plan afterwards?

      1. E.g. did testator die next week or live for 10 more yrs during which could’ve changed the estate plan?

      2. E.g. were there a series of estate plans that left the alleged perpetrator roughly the same amount?

         1. Harder to show U.I. if testator had lots of chances to change will and never did or signed new wills continuing to leave property to perpetrator

   9. Independent legal advice– e.g. hope that attorney would have been alert to any potential undue influence

   10. Secrecy of will – e.g., if the will was prepared/changed in secrecy  might show undue influence

2. Steps to Take at Planning Stage to Avert a Contest of Undue Influence

   1. ALWAYS meet with the client ALONE (especially if unnatural disposition exists)

      1. Even if there’s no U.I. going on – avoids any appearance/allegation later on that there was U.I.

   2. Periodically update the estate plan w/Memo to the file (best to show you made memo right after meeting)

   3. Include safeguards into estate plan to prevent plan from being amended w/o others knowing about it

      1. “any amendment to this RT only valid if copy of amend>brought to attorney w/in Y days after signed

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