Wills, Trusts, and Estates


A will must be made voluntarily.


[T]he testator . . . must be capable of knowing and understanding in a general way:

  1. the nature and extent of his or her property,
  2. the natural objects of his or her bounty, and
  3. the disposition that he or she is making of that property, and must also be capable of
  4. relating these elements to one another and forming an orderly desire regarding the disposition of the property.
Copyright, The American Law Institute

He does not have to actually know these things, only be capable of knowing them.

Making a lifetime gift requires more capacity than making a will, and making a will requires more capacity than getting married.

Insane Delusion

An insane delusion is a false conception of reality.

A person who drafts his will based on an insane delusion may have sufficient capacity to understand how to dispose of his property but will still be barred from doing.

Someone can be mostly crazy, but as long as his will is made in a moment of lucidity, it will be valid.

Undue Influence

Undue influence is when someone exerts such influence so as to overbear the donor's free will and make him make a transfer he otherwise would not have made.

Undue influence prevents a will from being voluntary when:

  1. The donor was susceptible to undue influence
  2. The alleged wrongdoer had an opportunity to exert undue influence R3P § 8.3

The burden to show undue influence is on the person who contests the will.

  • Although the burden may be given to the proponent of the will if he was a fiduciary of the decedent.

A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Copyright, The American Law Institute

A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor ot make a donative transfer that the donor would not otherwise have made.

Copyright, The American Law Institute

Fraud can either be in the execution of the will, where misrepresents the character or contents of the will, or in the inducement of the will, where one's misrepresentation causes the testator to make his will in the wrongdoer's favor.

An involuntary transfer that fails will be included in the residue.