Law of Wills, 2016A

The motion for summary judgment with respect to duress is denied. In all other respects, themotion
is granted.
The court will contact the parties to schedule a conference before a trial on the issue of duress.
This decision constitutes the order of the court.
10.3 Fraud
According to § 8.3(d) of the Restatement (Third) of Property: Wills and Other Donative
Transfers, “A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made
a false representation to the donor about a material fact that was intended to and did lead the donor
to make a donative transfer that the donor would not otherwise have made.” If the fraudulent
actions of another person impacts the contents of the testator’s will, the will is not valid because it
does not reflect the testator’s true intent. The misrepresentation must be made with both the intent
to deceive the testator and the purpose of influencing the testamentary disposition. Let’s look at an
example.
Example 1: Betty planned to leave half of her estate to her friend, Elaine. One day, Betty shared
that fact with her neighbor, Louise. Louise told Betty, “I saw Elaine’s daughter about a month ago
and she told me that Elaine had been diagnosed with breast cancer. Last week, I ran into Elaine’s
cousin at the supermarket and she told me that Elaine did not make it.” In fact, the cousin told
Louise that the doctors did not think that Elaine was going to make it. After Betty tried
unsuccessfully to contact Elaine and her family, she executed a will leaving all of her estate to
charity. At the time that Betty executed her will, Elaine was very much alive.
Explanation 1: Betty’s will was not a product of fraud. Louise’s purpose was to influence the
testamentary disposition because she did not want Betty leaving half of her estate to a dead woman.
However, Louise did not tell her Elaine was dead to deceive her. At the time she shared the
information, Louise thought that it was true. Fraud would have occurred if Louise knew Elaine was
alive, but she did not want Elaine to get half of the estate.
There are two types of fraud relevant to estate planning—fraud in the inducement and fraud
in the execution. Fraud in the inducement occurs when a person misrepresents facts, thereby
causing the testator to execute a will, to include particular provisions in the wrongdoer’s favor, to
refrain from revoking a will or not to execute a will. Fraud in the execution occurs when a person
misrepresents the character or contents of the instrument signed by the testator, which does not in
fact carry out the testator’s intent
10.3.1 Fraud in the inducement
Fraud in the inducement happens at the beginning of the estate planning process. It usually
involves a situation where someone seeks to entice the testator into making a testamentary
disposition that benefits him or her. The person makes a misrepresentation for the sole purpose of
achieving that goal.
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