A legal presumption of undue influence arises when there is a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence. As it is required for invalidation of a will, undue influence must amount to "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will
Lack of Mental Capacity or incompetence is typically proven by medical records and testimony of those who observ
Lack of disposing mind and memory or Testamentary capacity claims are based on the testator's lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of his bounty (his family).
Insane delusion is another form of incapacity
Insane delusion is a false sense of reality. Insane delusion is considered as a common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence on the contrary. The will made out of a state of insane delusion will be considered as void.
Following is an example of a case defining insane delusion:
An insane delusion is an irrational belief. Where a testatrix has some actual grounds for the belief which she has, though regarded by others as wholly insufficient, the mere misapprehension of the facts or unreasonable and extravagant conclusions drawn there from do not establish the existence of such a delusion as will invalidate her will.[re Estate of Bonjean, 90 Ill. App. 3d 582, 584 (Ill. App. Ct. 3d Dist. 1980)].
Duress involves some threat of physical harm or coercion practiced upon the testator by the perpetrator which caused the execution of the Will
duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]". Duress is pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law and from necessity.Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition". - Black's Law Dictionary (8th ed. 2004)
Duress in contract law falls into two broad categories:
Physical duress, and
FraudThere are four (4) general elements of fraud: 1.False representations of material facts to the testator; 2.Knowledge by the perpetrator that the representations are false; 3.Intent that the representations be acted upon; and 4.Resulting injury
There are two primary types of fraud: Fraud in the Execution, for example, the testator was told the Will he signed was something other than a Will, and Fraud in the Inducement, for example,the testator is intentionally misled by a material fact which caused the testator to make a different devise than he would otherwise have made
The motive for estate theft is simple: MONEY. One signature on a piece of paper is all it takes to
shift unlimited amounts of wealth from one person to another. The temptation is often too much to resist. Recent news reports of Brooke Astor's estate demonstrate this all too well. Estate theft happens too often because of a number of factors.
The only direct witness is usually dead
Undue influence typically involves a trusted friend, relative or caregiver who actively procures a new will
Undue influence. Undue influence typically involves a trusted friend, relative or caregiver who actively procures a new will. For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution
Just because the provisions of a will may seem "unfair" does not mean that the will is invalid
Courts will not necessarily look to "fairness" during will contests. In other words, just because the provisions of a will may seem "unfair" does not mean that the will is invalid. Therefore, wills cannot be challenged simply because they seem unfair. The decedent has a legal right to dispose of his or her property in any way that is legal. Due to a large number of will contests, judges are often wary of contests especially when involving the willing of property to charitable organizations. in short form, self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or interference. The principle does not state how the decision is to be made, or what the outcome should be, whether it be independence, federation, protection, some form of autonomy
Elder Abuse is the will vaild
Many elderly adults are abused in their own homes, in relatives' homes, and even in facilities responsible for their care. If you suspect that an elderly person is at risk from a neglectful or overwhelmed caregiver, or being preyed upon financially, it's important to speak up. Learn to recognize the warning signs of elder abuse, what the risk factors are, and what you can do to prevent and report the problem..
If this is how the will was gotten then issues of
Additional resources provided by the author
Howard Roitman, Esq.
8921 W. Sahara Ave.
Las Vegas, Nevada 89117
(702) 647 8550