A child fraudulently claims to be testator’s illegitimate son. As a result, the testator leaves half of the estate to the child. Would the testator have left half of the estate to the child, if the testator knew the true facts? If no, then invalidate the gift. If yes, then it does not constitute fraud sufficient to strike that provision of the will. (3) Mistake (a) Two types: 1) a) b) 2) a) b) c) In some instances, CA courts will permit extrinsic evidence. If there is ambiguity or evidence of undue influence, fraud or duress, courts will admit extrinsic evidence to show true intent.
A sham will is a will made by the testator as a sham or a joke not intending that it be a valid testamentary instrument. If it can be that shown by the challenger through clear and convincing evidence that the document was not intended to be a will, but created as a sham or a joke, then the will be invalid. Testamentary intent was not present. A conditional will is when there is a condition precedent to the will taking effect. In such a situation, if the condition does not occur, then the will is invalid. However, the condition must be clearly spelled out in the document.
From 2004 on, Roger repeatedly threatened his sick brother George that he would “pull the plug” on him if he didn’t leave him money in his will. George died in 2009 leaving Roger a large bequest. George’s son Barry moved to have the will set aside for undue influence, but notes found in George’s effects showed that George had always intended to leave most of his estate to Roger, but simply had never wanted to tell Roger that. Can Barry succeed?