An Ounce of Prevention: Grounds for Upsetting Wills and Will Substitutes

The following article offers guidance for the practitioner in protecting a dispositive plan and examines the nonformal grounds for upsetting both testamentary and inter vivos dispositions. These include lack of testamentary intent, lack of capacity and undue influence.

In the area of intent, the problems with sham and specimen wills and the troublesome question of the admissibility of extrinsic evidence are among the major items discussed. As to will substitutes, there is an analysis of the problems of intent with regard to standardized forms, especially in relation to joint accounts. Alternative solutions of agency accounts and durable powers of attorney are suggested. This is followed by a discussion of how the Statute of Frauds affects oral inter vivos transfers of realty and a view of the differing treatment of conditional wills.

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Jan Ellen Rein-Francovich, An Ounce of Prevention: Grounds for Upsetting Wills and Will Substitutes, 20 Gonz. L. Rev. 1 (1984).

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