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The Detailed Analysis discusses the formalities of execution in depth, since the validity of a will depends upon adherence to the requirements of the jurisdiction in which the will is executed as well as that in which it is ultimately probated. The discussion begins with the historical background to will formalities.

Much of the discussion of current law is based on the provisions of the Uniform Probate Code and the Revised Uniform Probate Code, which form the basis of most state statutes. In addition, the Portfolio provides summaries of the execution requirements of all 50 states and the District of Columbia, as well as the choice of law rule in each jurisdiction.

Important notice

Even if a will is executed with the necessary formalities, it is still subject to challenge if the testator did not have the required testamentary capacity at the time of execution or was subject to undue influence. This Portfolio addresses both of these issues, again relying upon the Uniform Probate Code, the Revised Code, and state law.

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The law of testamentary capacity in Kentucky, Pennsylvania, Florida, and Colorado is explained in more detail as a way of demonstrating the varying standards in the states, and there is a similar examination of Florida, Wisconsin, and Kentucky law with respect to undue influence. There were three grounds to their claim. Firstly, they claimed that she lacked testamentary capacity to make the will. Secondly, they claimed that she had agreed to make a mutual will with their father on different terms and, thirdly, they claimed that she had been unduly influenced by their other brother, Richard.

What are The Warning Signs of Undue Influence?

The court found that the mother's last will in favour of Richard was valid and therefore our client was able to continue the administration of the estate on the basis of that will. When this happens, the burden shifts to the defendant to prove that undue influence did not occur.

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The ability to shift the burden, or even the credible threat of being able to do so, can be a powerful tool in New Jersey probate litigation. It might cause the defendant to consider settling a case when he or she otherwise would not have, or settling at an earlier stage or on terms more favorable to the plaintiff than the defendant would have wanted. The reason is that cases in which the plaintiff can shift the burden often involve factual issues that require a trial to decide.

Undue influence - Part 1

Because litigants in probate cases frequently, for a variety of reasons, prefer not to go to trial, a plaintiff who can shift the burden might be able more credibly to threaten a willingness to go to trial and use that threat to his or her advantage in settlement negotiations. But every case must be evaluated in the context of its own unique set of facts. In addition to arguing that the testator lacked capacity, the challengers argued that her nephew, one of the beneficiaries under the will, had unduly influenced the testator.