DOCSLIB.ORG

The Burden of Proof As to Testamentary Capacity in Wisconsin, 43 Marq

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Burden of Proof As to Testamentary Capacity in Wisconsin, 43 Marq Marquette Law Review Volume 43 Article 4 Issue 2 Fall 1959 The urB den of Proof as to Testamentary Capacity in Wisconsin Robert G. Ulrich Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Robert G. Ulrich, The Burden of Proof as to Testamentary Capacity in Wisconsin, 43 Marq. L. Rev. 230 (1959). Available at: http://scholarship.law.marquette.edu/mulr/vol43/iss2/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. COMMENTS THE BURDEN OF PROOF AS TO TESTAMENTARY CAPACITY IN WISCONSIN The phrase burden of proof is often heard in the practice of law, but its meaning frequently seems to escape definition. Though it may often be thought of as a theoretical concept of little practical value, it may be of great advantage to the practitioner to know the exact mean- ing of the term. Different meanings may be given to the phrase, but in this article an attempt will be made to make the different meanings stand in sharp focus. THE Two MEANINGS OF THE BURDEN OF PROOF- ORTHODOX POSITION Wigmore states that the phrase burden of proof is used in two senses, the burden in the primary sense and the burden in the secondary sense.' The burden of proof in the primary sense refers to the burden placed upon one party to ultimately bear the risk of nonpersuasion of the jury (or judge). 2 By the risk of nonpersuasion is meant the necessity of convincing the jury (or judge) in the last instance of the truth of one's contention. In an ordinary civil case, the judge will instruct the jury that the party with the burden in the primary sense has the burden of proving by a preponderance of the evidence the truth of his allegations. The burden of proof in this, the primary sense, never shifts.3 Wigmore also explains who generally has the burden of proof in the primary sense. Logically and as a good general rule, the location of the burden in the primary sense can be determined from the com- plaint. A party plaintiff will have the burden of proving the allegations of his complaint. If the defendant has an affirmative defense, he must prove his affirmative argument; he has the burden of proof on this 4 issue. As opposed to this burden of proof which remains upon the same party from the beginning to the end of the case, there is the burden in the secondary sense. The burden in the secondary sense refers to the burden of going forward with evidence to meet the evidence of the opposite party or to establish a prima facie case.- Initially the burden in the secondary sense is on the party with the risk of nonpersuasion of the jury (burden in the primary sense), although he may be able to meet this secondary burden through the aid of presumption.6 If he 1 WIGMORE, EVIDENCE, §2485 at 270, §2487 at 278 (3d ed. 1940). 2 Id. §2485 at 278. 3 Id. §2489 at 285. 4 Id. §2487 at 279 and 282. Id. at 279 and 281. 6Id. at 282-284. 19591 COMMENTS produces evidence sufficient to make out a prima facie case, that is, evidence which in the absence of contrary evidence is sufficient to go to the jury, it is said that the burden shifts. The other party who according to the general rule will be the defendant is now required to meet the prima facie case of his opponent (who under our assumption will be the plaintiff). He must meet this burden in the secondary sense or risk having a verdict directed against himself. Once he has met this burden it is often said that the burden shifts back again to the party who originally had the burden in the secondary sense. But Wigmore says that this is only true when the defendant introduces evidence of such a nature that the evidence of the plaintiff is rendered non-credible. In order to shift the burden the defendant must do more than to equalize the evidence. If he introduces evidence which effec- tively destroys the plaintiff's prima facie case and if in the absence of other evidence, a verdict would have to be directed against the plain- tiff, then the burden will shift again.7 It seems clear that the burden in the secondary sense refers, as Wigmore says, to the procedure by which the judge controls the evidence in requiring credible evidence for the jury's consideration (or for his consideration if he is trying the case)." The burden in the secondary sense thus is only for the judge's consideration. Once the necessary prima facie case has been made and there is substantial evidence upon which a reasonable jury could base a verdict, the jury will be instructed that a certain party has the burden of convincing them of the truth of his contention. But this, the burden in the pri- mary sense, is not considered until the burden in the secondary sense has been satisfied and the case is before the court or jury for final consideration. THE BURDEN OF PROOF AS TO TESTAMENTARY CAPACITY As we have stated, the general rule is that the plaintiff has the burden of proof in the primary sense as to the allegations of his com- plaint. At first glance, then, we might expect the proponent of a will to have the burden of proving testamentary capacity. In many states it seems that this is the case. Atkinson states that in the majority of states the proponent of the will has the burden of proof in the primary sense on the issue of testamentary capacity. 9 The burden is upon the proponent since as part of his case for proving the will he must prove that the testator had the necessary capacity to make it. The contestant does not have the burden of proof, even though he alleges incapacity as a ground for denial of probate. The proponent is aided in meeting his burden by the presumption of sanity that exists in many states.10 7 Id. at 279. 8 Id. at 273. 9 ATKINSON, WILLS §101 at 545 (2d ed. 1953). 'oId. at 546. MARQUETTE LAW REVIEWV. [Vol. 43 The rule is the same as to the due execution of the will; the proponent must prove due execution." But the rule is different when the claim of the contestant is that the testator was subject to undue influence. Here Atkinson says that the general rule is that the burden in the primary sense is upon the contestant. 12 This may be for the reason that undue influence is a form of fraud which has always been regarded as provable by the contestant. Perhaps too it is thought that the contestant has a better chance of proving undue influence. But whatever the reason, the burden as to mental capacity and the burden as to undue influence have been treated differently by the courts and so we might expect to find Wisconsin following along with the great weight of authority. In Will of Faulks13 the Wisconsin Supreme Court seems to adopt the orthodox position in toto. The Court states with great vigor its belief that the contestant has the burden of proof in the primary sense on the question of undue influence. 4 The Court also explains Wig- more's definitions of the two meanings of the burden of proof and seems to accept the orthodox position here also.' While bringing Wis- consin law into line with the majority position on the question of undue influence, the Court also adds the dictum that the burden of proof in the primary sense as to testamentary capacity is upon the proponent.' 6 This statement is clear and unambiguous, but unfortunately other cases on the subject are not clear and unambiguous. In the early case of Allen v.Griffin the Wisconsin Court stated: ...This Court has held and we think properly that in a case where a will is contested on the ground that the deceased was insane or otherwise incompetent to make a will at the time the same was made, the burden of proof is on the contestant and that the proponent need not in making out his side of the case, make full proof of the capacity of the testator, but may con- tent himself, by making out a prima facie case of capacity and introduce his further proofs on that question after the con- testant has made his proof. In a case which does not disclose any facts which tend to show incompetency, slight evidence of the competency of the testator is sufficient to put the contestant to his proofs upon that question.' 11 Id. at 543. 12Id. at 549. 13 246 Wis. 319, 17 N.W. 2d 423 (1943). 1 246 Wis. at 358. 15 Id. at 345. 16 Id. at 357. The Court states "The burden of proof is upon the proponent to establish by the fair preponderance and weight of the evidence that the instru- ment propounded is the genuine last will and testament of the deceased that he was competent to make a will, and that it was duly executed and attested with the requisite formalities .... This burden is upon the proponent to the end of the trial. (Emphasis added.) 1769 Wis.
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]
  • Glossary.3D 5/6/2008 13:55 Page 581
    21764_24_glossary.3d 5/6/2008 13:55 page 581 Glossary 401(k) plan A company-sponsored retirement plan of a dead person whose executor (person chosen to in which an employee agrees either to take a salary hand it out) has died. Also called administrator de reduction or to forgo a bonus to provide money for bonis non or administrator d.b.n. retirement. administrator pendente lite Temporary administra- A tor appointed before the adjudication of testacy or intestacy to preserve the assets of an estate. abates 1. Destroy or completely end. 2. Greatly lessen or reduce. administrator with the will annexed (Latin) “With the will attached.” An administrator who is adeemed Take away. appointed by a court to supervise handing out the ademption 1. Disposing of something left in a will property of a dead person whose will does not before death, with the effect that the person it was name executors (persons to hand out property) or left to does not get it. 2. The gift, before death, of whose named executors cannot or will not serve. something left in a will to a person who was left it. Also known as administrator w.w.a., administrator cum testamento annexo, and administrator c.t.a. administrator A person appointed by the court to supervise the estate (property) of a dead person. If administratrix Female appointed to administer the the supervising person is named in the dead estate of an intestate decedent. ’ person s will, the proper name is executor. advance directives A document such as a durable administering an estate Settling and distributing the power of attorney, health-care proxy, or living will estate of a deceased person.
    [Show full text]
  • Dependent Disclaimers Katheleen R
    University of Oklahoma College of Law From the SelectedWorks of Katheleen R. Guzman Fall 2016 Dependent Disclaimers Katheleen R. Guzman Available at: https://works.bepress.com/katheleen_guzman/11/ guzman, katheleen 12/4/2017 For Educational Use Only DEPENDENT DISCLAIMERS, 42 ACTEC L.J. 159 42 ACTEC L.J. 159 ACTEC Law Journal Fall, 2016 Katheleen R. Guzmana1 Copyright © 2016 by The American College of Trust and Estate Counsel. All Rights Reserved.; Katheleen R. Guzman *159 DEPENDENT DISCLAIMERS I. INTRODUCTION Intent, delivery, and acceptance.1 The first two can be pressed at a donor’s choice; with the last one, the donee can brake. In this regard, inter vivos gift theory reflects symmetrical propositions: just as no one can be forced to make a gift, none can be forced to accept one. The same holds true for estates. Under the twin theories of renunciation and disclaimer,2 would-be takers may refuse to accept a devise or inheritance,3 simultaneously rejecting a right to acquire and exercising a right to avoid. Such refusal again reflects evenness of form, for in the very act of disclaiming inheres the enrichment of someone else. It might initially seem odd that one would reject another’s largesse or the status of being deemed heir. But ownership carries both value and cost, and acquisition is personal choice. Refusal will sometimes occur. *160 Where the rejecter is also the would-be owner, the disclaimer is both clean and direct, and is a relative commonplace within estates law to attain tax efficiency or avoid a creditor’s claim.
    [Show full text]
  • The Concept of 'Will' Under Muslim Law: a Study
    International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 4 Issue 3 70 THE CONCEPT OF ‘WILL’ UNDER MUSLIM LAW: A STUDY Dr Anand Kumar Tripathi, Assistant Professor of Law, Raksha Shakti University,Ahmedabad-16 E-mail: [email protected] Abstract: In Muslim law, the testamentary document called the will is referred to as Wasiyat .Will or Wasiyat is a document made by the legator in favour of legatee which becomes effective after the death of the legator. Under Muslim law no person is entitled to make will of the whole property. Limitations are imposed in making will.The reason being to pay the respect to the word of prophet in order to ensure the shares of the legal heirs. In case of will of absolute property nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in the Quran, though the Quran itself does not provide for the testamentary restriction of one-third. The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which ahs been stated by Sa’d Ibn Abi Waqqas and reported by Bukhari. Introduction Sa’d Ibn Abi Waqqas said: “The Messenger of God used to visit me at Mecca, in the year of the Farewell Pilgrimage on account of my illness which had become very serious. So I said, “My illness has become very severe and I have much property and there is none to inherit from me but a daughter, shall I then bequeath two-thirds of my property as a charity?” He said, “No.” I said, “Half?”, He said “No.” Then he said: “Bequeath one-third and one-third is much, for if thou leavest thy heirs free from want, it is better than that thou leavest them in want, begging of other people; and thou dost not spend anything seeking thereby the pleasure of Allah but thou art rewarded for it even for that which thou puttest into the mouth of they wife” In Muslim law, the testamentary document called the will is referred to as Wasiyat.
    [Show full text]
  • Text and Time: a Theory of Testamentary Obsolescence
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Law Review Volume 86 Issue 3 2009 Text and Time: A Theory of Testamentary Obsolescence Adam J. Hirsch Florida State University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Estates and Trusts Commons Recommended Citation Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence, 86 WASH. U. L. REV. 609 (2009). Available at: https://openscholarship.wustl.edu/law_lawreview/vol86/iss3/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. TEXT AND TIME: A THEORY OF TESTAMENTARY OBSOLESCENCE ADAM J. HIRSCH∗ Events may occur after a will is executed that ordinarily give rise to changes of intent regarding the estate plan—yet the testator may take no action to revoke or amend the original will. Should such a will be given literal effect? When, if ever, should lawmakers intervene to update a will on the testator's behalf? This is the problem of testamentary obsolescence. It reflects a fundamental, structural problem in law that can also crop up with regard to constitutions, statutes, and other performative texts, any one of which may become timeworn. This Article develops a theoretical framework for determining when lawmakers should—and should not—step in to revise wills that testators have left unaltered and endeavors to locate this framework in the context of other forms of textual obsolescence.
    [Show full text]
  • Does a Will Need an Attestation and Affidavit
    Does A Will Need An Attestation And Affidavit Uncompanioned Bartholemy overinsure very inerasably while Ross remains separable and left-handed. Operant or endometrial, Alwin never padlock any foot! Apiculate and stage-struck Clarke rib her cheechakoes explores vocally or denaturise dispersedly, is Spiro founded? Istorical basis for a conveyancing fees for law requires additional witness does a will need an and attestation clause should receive anything you The court ultimately unrecognized, lake worth reiterating that need a an and does will attestation affidavit is important to fit your situation of self proving attestation by the self vs. Many jurisdictions have the attorney to my property owned by having trust with either does a need an attestation affidavit will and national commerce act when an appointment of. Compound the content included in his age, a specific questions to evaluate that does a need an and will attestation clause is or third person making it clear as a prenup agreement? Any attesting witness to project will including without limitation an electronic will may. Will was witnessed properly signed affidavit and attestation clause. The county into shares in intestacy will does an. The witnesses and free dictionary, it leaves your affidavit attestation clause at or signed? Having breakfast with a third witness and does a need an attestation affidavit will. Relation to sign before admitting a will is not know more? Complete an estate planning lawyer should i write because the paper, confirmed by filing. Could be able bodied
    [Show full text]
  • BASICS of WILL DRAFTING the Importance of Having a Will a Will
    BASICS OF WILL DRAFTING PATRICIA J. SHEVY, ESQ. THE SHEVY LAW FIRM LLC [email protected] The Importance of Having a Will A Will sets forth a person’s directions with respect to the direction of his or her assets after death. Without a properly executed Will, the laws of intestacy will apply to the distribution of a person’s assets. Many clients assume that the laws of intestacy will suffice. However, what happens in the following example: Husband and Wife have 3 minor children. Husband has $700,000 in assets. Wife has $1,000 in assets. The house is owned jointly by Husband and Wife. Husband dies. Wife keeps the house as surviving joint tenant. The remaining $700,000 is divided between Wife and children according to the laws of intestacy (Wife receives $50,000 plus ½ of the remaining $650,000; the 3 children split the remaining $325,000). But remember the children are minors, so the court will be involved until the youngest child reaches majority. This is probably not the outcome Husband and Wife had in mind. Problems with Intestate Succession When a New York State resident dies leaving no Will, the assets of the decedent will be distributed under New York Estates, Powers and Trusts Law (“EPTL”) Article 4, which lists the order and amount that family members will take from the estate of the decedent. In cases where a person dies intestate, EPTL §4-1.1 provides that a decedent’s assets will be distributed as follows: . If survived by a surviving spouse and children, the spouse receives $50,000 and ½ of the balance.
    [Show full text]
  • 98013-6 Per Order Dated 4/29/20 the Clerk's Motion to Strike the Reply Is Granted Except As to Portion of the Reply That Addre
    FILED per order dated 4/29/20 SUPREME COURT The clerk’s motion to strike the reply is granted STATE OF WASHINGTON except as to portion of the reply that addresses 212812020 1 :32 PM the request for attorney fees. BY SUSAN L. CARLSON CLERK 98013-6 CASE NO. 78696-2-I COURT OF APPEALS, DIVISION I OF THE STA TE OF WASHING TON Indira Rai-Choudhury, Petitioner, V. Stephanie Inslee, in her official capacity as personal representative of the Estate of Margaret Rai-Choudhury, Respondent. REPLY IN SUPPORT OF PETITION FOR REVIEW TO THE WASHINGTON STATE SUPREME COURT Christopher C. Lee, WSBA No. 26516 Attorneys for Indira Rai-Choudhury Aiken, St. Louis & Siljeg, P.S. 801 Second A venue, Ste. 1200 Seattle, WA 98104 206-624-2650/fax: 206-623-5764 lcd u~ni ken .tom Table of Contents I. INTRODUCTION .. ... .. ...... .... .. ... .. .. ... .. .. ... .. ... .. .. ...... .. ... 1 II. REPLY TO STATEMENT OF FACTS ... ... .. .. ..... .. .......... .. 2 III. REPLY TO LEGAL ARGUMENTS ... .......... ..... .. .... .. ... ... ... 3 A. A Presumption of Lucidity Can Be Challenged By Showing Margaret's Reasoning for her Estate Plan had no Basis in Fact ................................................. 3 B. RCW 5.60.030 Excludes Testimony of Transactions With the Decedent and Statements Made by Decedent; It is Not a Complete Bar of All Testimony Concerning Decedent .................................................... .... ...... 6 C. Substantial Admissible Evidence Existed to Create a Genuine Issue of Material Fact Decedent ........ ... ... ...... ... .. 8 D. The Estate's Request for Attorneys' Fees and Expenses Should Be Denied ......... ..... ... .. .. .. .. .. ..... ..... ..... .. .. 9 IV. CONCLUSION . .. .. .... ... ... ............ .... ... .... .......... ..... ...... 9 APPENDIX • Anderson v. Hunt, 196 Cal. App. 4th 722, 126 Cal. Rptr. 3d 736 (2011) Table of Authorities Cases Aetna Life Ins.
    [Show full text]
  • Will Formalities in Louisiana: Yesterday, Today, and Tomorrow
    Louisiana Law Review Volume 80 Number 4 Summer 2020 Article 9 11-11-2020 Will Formalities in Louisiana: Yesterday, Today, and Tomorrow Ronald J. Scalise Jr. Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev Part of the Law Commons Repository Citation Ronald J. Scalise Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. (2020) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol80/iss4/9 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Will Formalities in Louisiana: Yesterday, Today, and Tomorrow Ronald J. Scalise, Jr. TABLE OF CONTENTS Introduction ................................................................................ 1332 I. A (Very Brief) History of Wills in the United States ................. 1333 A. Functions of Form Requirements ........................................ 1335 B. The Law of Yesterday: The Development of Louisiana’s Will Forms ....................................................... 1337 II. Compliance with Formalities ..................................................... 1343 A. The Slow Migration from “Strict Compliance” to “Substantial Compliance” to “Harmless Error” in the United States .............................................................. 1344 B. Compliance in Other Jurisdictions, Civil and Common ..............................................................
    [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]
  • Chapter 6: Final Draft and Execution of a Valid Will
    CHAPTER 6: FINAL DRAFT AND EXECUTION OF A VALID WILL MATCHING a. exordium clause b. residuary clause c. conservator d. delay clause e. simultaneous death clause f. principal g. attestation clause h. medical power of attorney i. nondurable power of attorney j. springing power of attorney 1. A person who directs an agent to act for the principal’s benefit subject to the principal’s direction and control 2. A statement in a will that determines the distribution of property in the event there is no evidence as to the priority of time of death of the testator and another, usually the testator’s spouse 3. The authority of a person to act on behalf of the principal that is triggered by the occurrence of a specified anticipated event 4. The authority of a person to act on behalf of the principal that ends when a specified event occurs 5. The guardian and manager of property left to minor or incompetent children 6. The authority of a person appointed by a patient to make decisions about his/her medical care when he/she becomes incapacitated and unable to make such decisions 7. A requirement of most states that a person must survive the first decedent by at least 120 hours to qualify as a surviving beneficiary 8. The beginning or introductory clause of a will 9. A statement by the witnesses in a will that they have attested and subscribed the testator’s signature 10. A statement in a will that disposes of the remaining assets of the decedent’s estate after all debts and gifts in the will are satisfied 1.
    [Show full text]
  • Challenging Suspicious Wills
    Radcliffe Chambers T: 020 7831 0081 11 New Square Lincoln’s Inn E: [email protected] London WC2A 3QB W: radcliffechambers.com Challenging suspicious wills – 08.06.2020 1. SUSPICIOUS WILLS There are a number of classic features common to probate claims where the validity of a Will is challenged. A testator typically executes a new Will in favour of one or more family members (often to the exclusion of others) or in favour of others, such as friends, neighbours or carers. The new Will represents a significant departure from the terms of previous Wills, which may have divided the estate equally between the testator’s children or nearest relatives. The terms of the Will are, therefore, surprising or suspicious, at least to the parties who wish to challenge its Charles Holbech validity. Call: 1988 The testator may have been elderly and/or in failing health, Barrister perhaps in the early stages of dementia, or suffering from the result of a recent bereavement. The golden rule may not have been observed if a doctor did not certify the testator’s capacity Charles Holbech specialises before the Will was executed. in private client work, both contentious and non- The testator is typically vulnerable and susceptible to influence. contentious, often involving The primary beneficiary under the Will may have been in the technical advice on tax, trusts position to influence the testator, by virtue of their dominating and estates. Whether advising personality or position of trust and/or may have been involved in the preparation or execution of the Will. in conference, on paper, or in court, Charles applies a detailed, but clear, analysis to There may, however, be little or no direct evidence that the beneficiary had sought to coerce the testator to execute the Will, complex issues.
    [Show full text]