DOCSLIB.ORG

WILL CONTESTS Commencement of Will Contest Wills Are Typically Challenged by Contestants on the Basis That the Decedent Lacked T

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
WILL CONTESTS Commencement of Will Contest Wills Are Typically Challenged by Contestants on the Basis That the Decedent Lacked T DISCLAIMER Material presented on the Wade Ash Woods Hill & Farley, P.C., website is intended for informational purposes only. It is not intended as professional service advice and should not be construed as such. The following memorandum is representative of the types of information we provide to clients when we prepare estate planning documents for them. However, this material may not be used by every attorney in the firm in every case. The attorneys at Wade Ash view each case as uniquely different and, therefore, the information we provide to our clients may be substantially different depending on the client’s needs and the nature and extent of their assets. Any unauthorized use of material contained herein is at the user’s own risk. Transmission of the information and material herein is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with Wade Ash Woods Hill & Farley, P.C., or any member thereof. WILL CONTESTS Commencement of Will Contest Wills are typically challenged by contestants on the basis that the decedent lacked testamentary capacity and/or the Will was a product of undue influence. Wills, however, may also be set aside on the basis of mistake, fraud or forgery. If pleading “mistake,” it must be proven that the decedent was induced by material misrepresentations or fraud to change his Will (i.e., but for the misinformation the Will would not have been changed). For example, one sibling advises his father that his brother is deceased when in fact he is alive and living overseas. The decedent, in reliance upon his son’s misinformation, changes his Will to exclude his son living overseas. Will contests may be initiated either by filing a Petition to the court requesting the determination of intestacy status of the decedent with respect to a Will/Trust that has been probated informally, or by filing for formal probate of an earlier Will or Codicil. 1 Statute of Limitations to Contest Wills Generally, under the Colorado Probate Code, the time imposed to file a Will contest is three years from the decedent’s date of death or upon notice of a Petition for Formal Probate of the Will. Upon the filing of an objection to a Will which has been admitted through informal probate, the matter is automatically placed in formal probate. The filing of competing petitions should preclude the probate registrar from taking any action and requires an evidentiary hearing before the district court judge or jury. Fees and Costs of Proponent and Contestant As long as the contest is defended in good faith, the personal representative is permitted to recover his or her attorneys fees and costs for defending the Will. Similarly, a contestant who prevails may be reimbursed his or her attorneys fees and costs from the estate. In other words, the contestant must finance the litigation out of his or her own personal funds and later seek reimbursement from the estate if the contestant prevails. No-Contest/Penalty Clauses in Wills The Decedent’s Will may contain a penalty or no contest clause. These clauses are enforceable if the contestant does not have probable cause to challenge the Will. “Probable cause” requires a finding of determination of whether a reasonable person properly informed and advised would have concluded that the Will contest would be successful. Challenges to Execution The current Colorado Probate Code requires that a formal typed Will, as opposed to a hand- written holographic Will, be signed by the testator, plus a notary or two witnesses either prior to or after the decedent’s death, each of whom must sign within a reasonable time after he or she witnessed the testator sign his Will. If the contestant claims some defect in the execution of the Will or Codicil, that claim must be specifically plead in the objection. Most Wills are self-proved. A self-proved Will is one that has an attestation clause containing statutory language, together with sworn declarations to a notary by the witnesses as to the statutory compliance of the execution ceremony. The document is then notarized. On account of the notarization under the Colorado Rules of Evidence, the Will is received into evidence without further proof. The admission of the self-proved Will into 2 evidence will provide prima facie evidence of due execution, and shifts the burden to the contestant to go forward on claims of lack of testamentary capacity and undue influence. Trusts are not self-proved and do not require notarization or witnesses. Burdens of Proof – Contested Cases The proponents of the Will have the initial burden of due execution, venue, and proof of death. The burden is on the contestant to show lack of testamentary capacity, fraud, undue influence, duress, mistake or revocation. The burden of proof as to both testamentary capacity and undue influence is by a preponderance of the evidence. Testamentary Capacity Testamentary capacity requires that a testator must have at the time of signing the Will/Trust (hereafter “Will”) the ability to understand: (1) that he or she is making a Will; (2) the nature and extent of the property he or she owns; (3) how that property will be distributed under the Will; (4) that the Will distributes the property as he or she wishes; and (5) those persons who would normally receive his or her property. CJI-Civ. 34:11 (CLE ed. 2017). The fact that the testator may not be able to recall all of his or her property in detail at the time of the signing of the Will does not render the Will defective. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005). Testamentary capacity is a very low standard. The Colorado Supreme Court upheld the Court of Appeals and the Denver Probate Court in In Re Estate of Breeden, 992 P.2d 1167 (Colo. 2000). In that case, the Court addressed the standards for testamentary capacity as well as whether the Will was executed by the decedent while he was suffering from an insane delusion. Breeden, at the time he prepared his handwritten Will, was drinking heavily and was under the influence of cocaine. His holographic Will left his multi-million dollar estate to his girlfriend. After he signed his Will, he shot his dog and then shot himself. Breeden’s parents challenged the Will on the basis of lack of testamentary capacity, as well as a claim that their son was suffering from an insane delusion. Judge Stewart (Judge in the Denver Probate Court) upheld the Will, finding that Breeden had testamentary capacity. In addition, she found that Breeden, at the time he prepared his Will was suffering from delusional thoughts, but those thoughts did not impact his Will. The Probate Court noted, that although Breeden was extremely paranoid believing he was under surveillance by the DEA through bugging devices in his house and car, those paranoid delusions did not impact his Will. 3 The Colorado Supreme Court, upholding the Probate Court, agreed that there was no causal relationship between Breeden’s paranoid delusions and the holographic document. Since 2002, the Breeden case has been the bench mark for the above five factor test regarding testamentary capacity, as well as the test for insane delusion. It has yet to be reversed. The next important case is In re Estate of Romero, where the decedent was suffering from mental illness. At trial, there was expert psychiatric testimony that established a diagnosis of schizophrenia, but the expert was unable to establish a causal relationship between the decedent’s auditory hallucinations and his testamentary capacity. The Denver Probate Court Judge ignored the contestant’s forensic expert and relied instead on family members, friends, care providers, treating physicians and the drafting attorney who all had direct contact with the decedent shortly before his death. The important point of Romero is that the Colorado Court of Appeals recognized that the trial court, as finder of fact, is free to place more weight on the testimony of those who have had actual contact with the decedent than paid experts hired by the contestant. Testamentary capacity is substantive question of fact. The issue is determined by the trier of fact, (i.e. the judge or jury), who may consider both direct and circumstantial evidence indicative of the testator’s mental status and determine how reasonable and natural the disposition was relative to the testator’s situation. Many times, the decedent’s prior estate plan will be extremely important in explaining why certain heirs were disinherited. Undue Influence Undue influence is defined as words, conduct, or both, which at the time of making of the Will/Trust (hereafter “Will”): (1) deprive the person making the Will of his or her free choice, and (2) cause the person making the Will to make the Will or to make one or more provisions differently than he or she otherwise would have. CJI-Civ. 34:14 (CLE ed. 2017). Undue influence is proved if the contestant can establish the following facts: (1) a person unquestionably susceptible to undue influence; (2) the opportunity in a third person to exercise undue influence and to effect a wrongful purpose; (3) a disposition to influence unduly for the purpose of procuring an improper benefit and; (4) a result appearing to be the effect of the supposed undue influence. Like testamentary capacity, undue influence is typically proved through circumstantial evidence and Colorado Courts have been liberal in admitting evidence of all circumstance that might tend, in conjunction with other evidence, to show undue influence. In re estate of Koch, the Colorado Supreme Court found that the charge of undue influence is substantially that of fraud and it can seldom be shown by direct or positive evidence.
Load more

Recommended publications
  • Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
    Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue
    [Show full text]
  • The Will Contest
    SMU Law Review Volume 17 Issue 3 Article 3 1963 The Will Contest Leon Jaworski Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Leon Jaworski, The Will Contest, 17 SW L.J. 371 (1963) https://scholar.smu.edu/smulr/vol17/iss3/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE WILL CONTEST* Leon Jaworski** I. IN GENERAL T HAS been said, and I think accurately, that a will is more apt to be the subject of litigation than any other legal instrument. Usually, it is the most important document executed in a person's lifetime. This immediately suggests that a will representing the true wishes of a testator of sound mind should be so prepared and executed as to be invulnerable, if possible, to an improper attack. It will aid me in the treatment of my subject to refer to wills with which I have been associated. Inasmuch as I have represented the proponent in some cases and the contestant in others, it should not be difficult to present my views without prejudice or favor, and this will be my effort. In any event, I trust that you will forgive me for allusions to personal experiences. In writing a will, a fundamental truth to be borne in mind is that the average jury, upon reviewing a will, is often tempted to rewrite it in accordance with their idea of what is fair and right, rather than testing its validity according to the instructions of the court.
    [Show full text]
  • When Probate Goes Wrong
    1111 SUPERIOR AVENUE SUITE 1000 CLEVELAND, OHIO 44114 216.696.4200 www.ssrl.com When Probate Goes Wrong David M. Lenz December 2009 The Probate Court oversees administration of decedents’ estates, but occasionally disputes arise that the parties cannot resolve without direct Court intervention: Is the Will valid? Are there assets missing? Has the Executor violated his duties? These disputes are litigated in the Probate Court, which has specific jurisdiction to handle probate-oriented disputes. Below are some answers to common questions about what to do when probate goes wrong: • How can I contest a Will? A will contest is a specific type of lawsuit—an action requesting the Probate Court to declare that a Will is invalid. It must be filed within three months after the Executor certifies to the Court that she has notified the beneficiaries and heirs that the Will was admitted to probate. • Why would a Court declare that a Will is invalid? Usually for one of three reasons: (1) It was not signed with the formalities required by law (e.g., the Will was not witnessed by two adults); (2) The decedent was unduly influenced in creating the Will; and/or (3) The decedent did not have the mental capacity to execute a Will. • How can we resolve a disagreement about what a Will means? If family members agree a Will is valid but disagree over how the Will should be interpreted, the executor or a beneficiary can file a “declaratory judgment” action to have the Court decide how to interpret the Will. • What can an Executor do if she thinks someone is improperly holding estate assets? She can file a “concealment of assets” action against the party and require that person to testify concerning possession or transfer of estate property.
    [Show full text]
  • To Contest Or Not: Drafting and Litigating No-Contest Clauses by Elizabeth T
    Reproduced by permission. ©2017 Colorado Bar Association 46 The Colorado Lawyer 39 (Jan. 2017). All rights reserved. TRUST AND ESTATE LAW To Contest or Not: Drafting and Litigating No-Contest Clauses by Elizabeth T. Meck and Morgan M. Wiener This article discusses current law on no-contest clauses. It includes suggestions for attorneys who draft and litigate no-contest clauses and considers the risks of litigation involving these provisions. roperty owners are generally free to dispose of their property whether the contesting party’s actions constitute an attack on the at death outright or in trust, in whole or in part, as they see dispositive instrument or provision. fit. This alienability is subject to statutory rights afforded to Given the rising amount of trust and estate litigation and the fre- P 11 surviving spouses, claims of creditors (including taxing authorities quency of post-mortem changes to estate plans, estate planning and dependents), and prohibitions of public policy that have been clients are increasingly interested in including these clauses to en - recognized in equity.1 sure that their estate plans will remain unchanged after their death. Fundamental to the freedom to dispose of one’s property at death The no-contest clause has become one of the most effective tools is the right to impose conditions on such transfers that restrict or an estate planning attorney can incorporate into dispositive instru- limit the timing, nature, or extent of the recipient’s ownership of the ments such as wills and trusts to prevent challenges to the plan.12 property.2 The in terrorem or “no-contest clause” has long been rec- Therefore, estate planning attorneys should draft clauses precisely, ognized as a condition intended to ensure that the settlor’s or tes- to ensure that enforcement is consistent with the client’s goals and tator’s wishes are honored by thwarting the likelihood of an attack ex pectations.
    [Show full text]
  • Coming to Terms with the Uniform Probate Code's Reformation of Wills
    University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2012 Coming to Terms with the Uniform Probate Code's Reformation of Wills Wayne M. Gazur University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Estates and Trusts Commons, and the Evidence Commons Citation Information Wayne M. Gazur, Coming to Terms with the Uniform Probate Code's Reformation of Wills, 64 S.C. L. REV 403 (2012), available at https://scholar.law.colorado.edu/articles/740. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 64 S. C. L. Rev. 403 2012-2013 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Feb 28 11:04:51 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information COMING TO TERMS WITH THE UNIFORM PROBATE CODE'S REFORMATION OF WILLS Wayne M.
    [Show full text]
  • Recent Trends in Will Contest Litigation
    Recent Trends In Will Contest Litigation DAVID F. JOHNSON Winstead PC [email protected] www.financialappellatevoice.com 300 Throckmorton St., Suite 1700 Fort Worth, TX 76102 817-420-8223 Jay J. Madrid Winstead PC [email protected] 2728 N. Harwood Street Dallas, Texas 75201 214-745-5400 Tarrant County Probate Bar Association September 19, 2014 WINSTEAD PC I ATTORNEYS DAVID FOWLER JOHNSON [email protected] Managing Shareholder of Winstead PC's Fort Worth Office 777 Main St., Suite 1100 Fort Worth, Texas 76102 (817) 420-8223 David maintains an active trial and appellate practice for the financial services industry. David has specialized in estate and trust disputes including: trustee resignation/removal, will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David's recent trial experience includes: Represented individuals in will contests arising from claims of undue influence and mental incompetence; Represented a trustee in federal class action suit where trust beneficiaries challenged whether it was the authorized trustee of over 220 trusts; Represented trustees regarding claims of mismanagement of assets; Represented a trustee who filed suit to modify three trusts to remove a charitable beneficiary that had substantially changed operations; Represented a bank regarding a negligence claim arising from investments from an IRA account; Represented estate representatives against claims raised by a beneficiary for breach of fiduciary duty; Represented beneficiaries against estate representatives for breach of fiduciary duty and other related claims; and Represented estate representatives, trustees, and beneficiaries regarding accountings and related claims. David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate, and Personal Injury Trial Law by the Texas Board of Legal Specialization.
    [Show full text]
  • WILL CONTEST: NECESSARY PARTIES DEFENDANT Fletcher V
    WILL CONTEST: NECESSARY PARTIES DEFENDANT Fletcher v. First Nat'l Bank, 167 Ohio St. 211, 142 N.E.2d 599 (1958) An action to contest a will was instituted within the statutory period of six months after the admission of the will to probate as provided in Revised Code section 2741.09.1 The action was dismissed by the trial court on the ground of lack of jurisdiction since an heir at law had not been made a party as required by Revised Code section 2741.02.2 On appeal, the dismissal by the trial court was affirmed by both the court of appeals and the Ohio Supreme Court.3 Though an action to contest a will is one of the most difficult to win even on the merits, many such cases have been lost on procedural grounds without ever having been tried on the merits. This may occur when a plaintiff commences such an action within the six months period but fails to join all necessary parties as required by Revised Code section 2741.02; then, six months after the will had been admitted to probate, a defendant successfully moves to dismiss the action because it was not properly commenced within the prescribed statutory period as set forth in Revised Code section 2741.09. The Ohio courts have repeatedly held that the right to contest a will in Ohio is statutory4 and if plaintiff does not comply with the statutes the cause of action is lost and the 5 court is without jurisdiction. Five categories of necessary parties are prescribed by Revised Code section 2741.02: 1.
    [Show full text]
  • STEVE R. AKERS Bessemer Trust Company, NA 300
    THE ANATOMY OF A WILL: PRACTICAL CONSIDERATIONS IN WILL DRAFTING* Authors: STEVE R. AKERS Bessemer Trust Company, N.A. 300 Crescent Court, Suite 800 Dallas, Texas 75201 BERNARD E. JONES Attorney at Law 3555 Timmons Lane, Suite 1020 Houston, Texas 77027 R. J. WATTS, II Law Office of R. J. Watts, II 9400 N. Central Expressway, Ste. 306 Dallas, Texas 75231-5039 State Bar of Texas ESTATE PLANNING AND PROBATE 101 COURSE June 25, 2012 San Antonio CHAPTER 2.1 * Copyright © 1993 - 2011 * by Steve R. Akers Anatomy of A Will Chapter 2.1 TABLE OF CONTENTS PART 1. NUTSHELL OF SUBSTANTIVE LAW REGARDING VALIDITY OF A WILL................................................................. 1 I. FUNDAMENTAL REQUIREMENTS OF A WILL. 1 A. What Is a "Will"?. 1 1. Generally. 1 2. Origin of the Term "Last Will and Testament".. 1 3. Summary of Basic Requirements. 1 B. Testamentary Intent. 1 1. Generally. 1 2. Instrument Clearly Labeled as a Will.. 2 3. Models or Instruction Letters. 2 4. Extraneous Evidence of Testamentary Intent.. 2 C. Testamentary Capacity - Who Can Make a Will. 2 1. Statutory Provision. 2 2. Judicial Development of the "Sound Mind" Requirement.. 2 a. Five Part Test--Current Rule.. 2 b. Old Four Part Test--No Longer the Law.. 2 c. Lucid Intervals. 3 d. Lay Opinion Testimony Admissible.. 3 e. Prior Adjudication of Insanity--Presumption of Continued Insanity. 3 f. Subsequent Adjudication of Insanity--Not Admissible. 3 g. Comparison of Testamentary Capacity with Contractual Capacity. 4 (1) Contractual Capacity in General.. 4 (2) Testamentary and Contractual Capacity Compared. 4 h. Insane Delusion.
    [Show full text]
  • Who Has Standing in Probate Court? (Or What Business Is It of Yours?)
    WHO HAS STANDING IN PROBATE COURT? (OR WHAT BUSINESS IS IT OF YOURS?) MARY GALLIGAN TAMMY C. MANNING MICHAEL J. GALLIGAN Galligan & Manning 802 W. Alabama Houston, Texas 77006 Fax: 713-522-9633 Telephone: 713-522-9220 [email protected] i Contents I. Introduction: ......................................................................................................................... P-1 II. Standing in Proceedings Involving Decedent’s Estates. ................................................. P-1 A. Establishing the Process for Determining Standing. ............................................................. P-1 B. Hearing to Determine Litigant’s Interest in Estate Should Take Place Before Trial. ....... P-2 C. No Jury Allowed for Motion in Limine. ................................................................................. P-2 D. Burden is on One Whose Interest is Challenged to Prove Existence of Interest. ............... P-3 E. Order Dismissing Action for Lack of Standing is Appealable. ............................................ P-3 F. Historical Exceptions to Rule – Opposition to Grant of Letters of Administration and Application for Appointment of Temporary Administrator ........................................................... P-3 G. What Constitutes an Interest in a Decedent’s Estate Sufficient to Confer Standing? ....... P-4 H. Issues Presented in Motion in Limine Should Not Be Confused With Issues to be Tried on the Merits. ...........................................................................................................................................
    [Show full text]
  • Will Contests Standing Objections to Probate
    WILL CONTESTS by Curtis E. Shirley It is the rare circumstance where a plaintiff files a will contest because he or she received what would otherwise be an intestate share. Children who inherit equally rarely force the high attorney fees or emotional cost of litigation. When a testator signs a will or trust which treats heirs differently, watch out. Although no person deserves to inherit, history, feelings, and emotions say otherwise. The reasons for a diminished inheritance might be apparent. But reasons sometimes do not help resolve the family turmoil left behind. In recent years will contests and trust contests have increased for several reasons. Starting in 1960s society changed its standards resulting in many more step parents, step children, and blended families. Baby boomers are passing away. Which set of kids inherit usually depends on which parent survives the longest. The elderly have more choices in a nursing home or in home care. With kids not handling day to day responsibility, care takers are inheriting more than ever. The ethical standards of fiduciaries also appears on the decline. Witnesses to wills inherit. Powers of attorney control too much. Even attorneys are drafting documents benefitting themselves or members of the attorney’s family. STANDING To have standing to complain about an inheritance, the petitioner or plaintiff must be an interested person. “´Interested persons´ means heirs, devisees, spouses, creditors, or any others having a property right in or claim against the estate of a decedent being administered. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved.” I.C.
    [Show full text]
  • Because It Found Him to Be the Only Individual with Personal Knowledge of Decedent’S Testamentary Capacity When the Will Was Executed
    CHERRY CREEK CENTRE 4500 CHERRY CREEK DRIVE SOUTH, SUITE 600 DENVER, CO 80246-1500 303.322.8943 WWW.WADEASH.COM DISCLAIMER Material presented on the Wade Ash Woods Hill & Farley, P.C., website is intended for informational purposes only. It is not intended as professional service advice and should not be construed as such. The following memorandum is representative of the types of information we provide to clients when we prepare estate planning documents for them. However, this material may not be used by every attorney in the firm in every case. The attorneys at Wade Ash view each case as uniquely different and, therefore, the information we provide to our clients may be substantially different depending on the client’s needs and the nature and extent of their assets. Any unauthorized use of material contained herein is at the user’s own risk. Transmission of the informa- tion and material herein is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with Wade Ash Woods Hill & Farley, P.C., or any member thereof. ________________________________ WILL CONTEST MEMORANDUM ________________________________ 1. Burden of Proof. In order for a Will to be admitted to probate, it is the proponents of the Will who have the initial burden of proof to establish their “prima facie” case that the testator had testamentary capacity. Generally, that burden is easily met upon presenting a self-proved Will or proving the Will’s due execution by subscribing witness’ testimony and by showing proof of death and venue. Once due execution of the Will is shown, two things occur: (i) a presumption arises that the testator had testamentary capacity on execution; and (ii) the proponent established the “prima facie” case.
    [Show full text]
  • Designation of Heirs a Modest Proposal to Diminish Will Contests Calvin R
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2003 Designation of Heirs A Modest Proposal to Diminish Will Contests Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, Designation of Heirs A Modest Proposal to Diminish Will Contests, 37 Real Property, Probate & Trust Journal (2003). Available at: http://repository.uchastings.edu/faculty_scholarship/1134 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. DESIGNATION OF HEIRS: A MODEST PROPOSAL TO DIMINISH WILL CONTESTS Calvin Massey* Editors' Synopsis: This Article explores the topic of designationof heirs, particularlyfocusing on will contests that arise because of an abnormal distribution of a decedent's estate by means of a will that favors a beneficiary who is not an heir of the decedent. The Article proposes procedures that could be employed to implement designation of heirsand analyzes the problems with and utility of each procedure. I. THE PROPOSAL AND ITS BENEFITS ................. 583 II. ALTERNATIVE PROCEDURES FOR DESIGNATION OF HEIRS ....................................... 590 A. Ministerial Procedure ......................... 591 B. Administrative Procedure ...................... 596 C. Conservatorial Procedure ...................... 598 D. Adversarial Procedure ......................... 599 III. PROBLEMS WITH THE PROPOSAL .................. 600 A . Revocation ................................. 600 B. Pretermitted Heirs ............................ 602 C. Collateral Effects on Intestate Succession ......... 602 D. Collateral Effects on Wills and Trusts ............ 606 E. D isclaim er .................................
    [Show full text]