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definición - Will_contest

definición de Will_contest (Wikipedia)

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Wikipedia

Will contest

                   

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part.

In many states, 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. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence.” Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958)

A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy.

Contents

  Standing to contest a will

Typically, standing to contest the validity of a will is limited to two classes of persons:

  1. Those who are named on the face of the will (i.e. any beneficiary);
  2. Those who would inherit from the testator if the will was invalid

The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.

Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.

  Grounds for contesting a will

The most common grounds, or reasons, for contesting a Will are:

  • 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). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent or that the Last Will and Testament was the product of fraud, undue influence or overreaching. Lack of Mental Capacity or incompetence is typically proven by medical records, irrational conduct of the Decedent, and the testimony of those who observed the Decedent at the time the Last Will and Testament was executed.
  • Insane delusion Insane delusion is another form of incapacity. Courts have defined it as a “fixed false belief without hypothesis, having no foundation in reality.” Hooper v. Stokes, 145 So. 855 (Fla. 1933). Other courts have expanded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason. In Re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983) In Florida, one of the most-often cited insane delusion is Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006). In it, the decedent executed a new will in 2005 while in the hospital with severe pain and under the influence of a strong medication. She died the next day. The new will disinherited the caretaker and left the decedent’s estate to several charities. The caretaker asserted that the decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent’s physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To the contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the Will as invalid based upon insane delusion.
  • Duress involves some threat of physical harm or coercion practiced upon the testator by the perpetrator which caused the execution of the Will.
  • 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.

  • 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.[1] In most states, including Florida, if the challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence.[2]

Some jurisdictions permit an election against the will by a widowed spouse or orphaned children. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.

  Practicability of contests

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[citation needed].

  Consequences

Depending on the grounds, the result of a will contest may be:

  1. Invalidity of the entire Last Will and Testament, resulting in an intestacy or reinstatement of an earlier Will.
  2. Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres.
  3. Diminution of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.

  See also

  References

   
               

 

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