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Chapter 3 Wills: Capacity and Contests

Chapter 3 Wills: Capacity and Contests. Any person of full age and sound mind may dispose of property by will. . . Iowa Code 622.264. Any person of full age and sound mind may dispose of property by will. . . Iowa Code 622.264.

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Chapter 3 Wills: Capacity and Contests

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  1. Chapter 3Wills: Capacity and Contests

  2. Any person of full age and sound mind may dispose of property by will. . . Iowa Code 622.264

  3. Any person of fullage and sound mind may dispose of property by will. . . Iowa Code 622.264

  4. Any person of fullage and sound mind may dispose of property by will. . . Iowa Code 622.264

  5. Full Age • 18 years or older • Under 18 but emancipated as a resulted of marriage, even though marriage ended in divorce • Iowa Code 633.3(18)

  6. I, Emperor Dwayne, King of Nebraska, being of sound and disposing mind

  7. Why Mental Capacity? • Want only to give effect to testator’s true desires • Testator’s without mental capacity are not persons • Mental capacity protects testator’s family

  8. Why Mental Capacity? • Mental capacity assures rational dispositions which benefit society • Mental capacity protects the mentally infirm from exploitation

  9. Mental Capacity • Nature and extent of one’s property • Persons who are the natural objects of one’s bounty • Have the highest moral claims • Disposition one is making of one’s property • How the first three elements relate to each other to form an orderly plan of disposition • Minimum competence • One can be judicially declared incompetent and still have testamentary capacity

  10. Mental Capacity • Presumption of capacity • Burden on contestant to prove incapacity by proving failure of any one of the four requirements

  11. In re Strittmater

  12. Insane Delusion An insane delusion is “one to which the testator adheres against all evidence and reason to the contrary.

  13. In re Honigman

  14. Pre-Mortem Probate • What is it? • What are its benefits? • What are its drawbacks?

  15. Undue Influence

  16. Undue Influence • Testator susceptible to undue influence • Alleged influencer had opportunity to unduly influence the testator • Alleged influencer was disposed to influence testator to obtain improper favor • Will evidences a result that is the likely effect of undue influence • Contestant has the burden of proof

  17. Lipper v. Weslow

  18. In re Wills of Moses

  19. Ethical Issues • Should a lawyer: • Draft will in which benefit given to lawyer • Draft will naming lawyer as a fiduciary • If named as the fiduciary, also be the “attorney for estate”

  20. Fraud

  21. Latham v. Father Divine

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