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will admitted to probate, but any interested person is equally entitled to do so. Receipts given to debtors of the estate by the executor before the issuance of letters testamentary are valid and release the debtors, but the executor cannot require payment before letters are issued.

REVIEW QUESTIONS

1. In what court in your state is a will probated? What are courts such as these called? When does a probate court have jurisdiction? What else besides probating wills do such courts do? Is it necessary to be represented by a lawyer?

2. What is understood by the "probate of a will"? Where should a will be proved? What should be done if there is a farm in another state? If the farm is situated in another county of the same state, what would be done? What are ancillary letters of administration? When are they required?

3. Whose duty is it to probate a will? In case of failure to present a will for probate, who may take action? Who cannot move to probate a will? May an executor refuse to serve?

4. In your state, is the will read after the funeral? If not, how do those interested obtain a knowledge of the contents?

5. When should probate be sought? What should an application for probate show? Generally, who should be present at a probate? How is the attendance of these secured in your state?

6. What is a citation? Who are specifically cited? How are citations served in your state?

7. If the will is not contested, who are examined? To what do the witnesses testify?

8. How is a lost will proved?

9. If the lawyer who drew the will had a carbon copy, would that

help? If there was no copy existing, but the lawyer and his stenographer could swear to the substance, could the will stand? How can a testator destroy a will and leave a record of his action?

10. If the will is admitted to probate, what is done next? What is

the authorization of an executor called?

CHAPTER VI

CONTESTING A WILL

§ 43. Difficulty of Breaking a Will

When those who would have inherited property find that a duly executed will has left the property to others less deserving, or to strangers to the blood, or to charities and educational institutions, they wax indignant, confer wrathfully, interview counsel learned in the law, and demand that the will be broken. Such suits are always interesting to lawyers, and even without much of a case a compromise is often effected that yields good fees for a minimum of effort. Practically, to set aside a duly executed will is usually a long and costly proceeding, and is successful in only a comparatively few cases. Robert Grant, who was a probate judge in Boston for many years, in "Law and the Family" says:

It is a current belief, which derives color from the sensational contests of which we read in the newspapers, that a great many wills are broken. But, though the attacks of disappointed or greedy relatives are numerous, the contrary is true according to the records of the largest county of the state with which I am most familiar (Massachusetts) and where predatory tendencies against testators are well developed. These records show a steady average of rather less than one per cent of wills disallowed during the last ten years, a result which is made more remarkable by the reminder that some of these were set aside because of defective attestation instead of the mental incapacity and undue influence ordinarily urged by the rapacious. The statistics for the same period show a yearly average of less than one per cent of wills compromised-that is where the legatees and next of kin agreed to split their differences with the sanction

of the court. These figures, which are undoubtedly indica-
tive of conditions elsewhere, reveal a disposition on the part
of juries to uphold the validity of legal testaments and tend
to contradict the notion of the man in the street that his last
wishes are apt to be disregarded.

It is to be remembered in this connection, however, that in many cases defective wills and wills by people of unsound mind are allowed to stand because of the great expense of contesting a will. A will involving a large amount offers some temptation to contestants and to their counsel. A will on which no one could make much by setting it aside is not likely to be attacked.

We all get the idea that it is an easy and a simple matter to "break a will." I did, until after a study of the records. The truth is that it is harder to break a will than it is to break any other human contract. In the entire history of the state of Illinois fewer than ten wills have been "broken" by the Supreme Court.1

Note:

1. Unless a testator was clearly not sane, unless his will is unjust, and unless the amounts involved are large, it is not wise to contest probate.

§ 44. Grounds for Contest

A will contest turns on the question as to whether the instrument offered for probate is the will of the deceased person. If the will is apparently complete, in due form, signed by the testator and attested as required by law, it will as a matter of due course be admitted to probate unless someone shows ground for its rejection.

It may be contested by any party interested by showing any of the following reasons why it should not be admitted to probate :

"Have You Made Your Will?" Halsey, American Magazine, May, 1916.

I. That the deceased had not mental capacity to make a will.

2. That he was not sane at the time he executed the alleged will.

3. That he was unduly influenced by those about him at the time.

4. That his execution of the alleged will was procured by fraud.

5. That the will is a forgery.

6. That it was not legally executed..

7. That the court has no jurisdiction.

In any of the foregoing cases, the person who contests the will must prove his assertion positively and so as to convince the probate judge. These causes for contest will be examined more particularly in the following sections. The legal learning on this subject is very extensive and only a few of the more prominent features under each head can be mentioned here.

§ 45. Mental Weakness

If such mental weakness could be shown as to make it clear that the testator did not understand what he was doing, the alleged will would be set aside. A man may be of limited mental capacity and yet know enough and have sufficiently clear ideas to dispose of his property. If a man was under guardianship, that would of course show his mental incapacity to manage his own affairs. But if he has had the care of his own property all his life, he probably will be allowed to dispose of it by will.

A frequent case is where the will is made on a deathbed at the importunity of relatives, and in such cases it is difficult to ascertain just how much mental capacity really existed. Each case depends largely on circumstances, and it is not easy to lay down any rule that would be useful to a layman. It

cannot be too much emphasized that a will should be made when the testator is well and able to think clearly. To postpone the making of a will until body and mind are failing is to risk the making of a hasty, foolish, and probably unjust will.

Even when the instrument is not set aside, deathbed wills cause endless troubles in the courts.. Few such are ever made that accurately or completely describe the property bequeathed. The giving of wrong addresses, wrong description of lands, and failure to describe the kinds of stocks, bonds, etc., bequeathed, cause confusion and much trouble.

§ 46. Insanity

An insane person cannot make a will while insane, but may make a good will in a lucid interval. This whole subject is difficult, and when the question of the sanity of a testator is to be tried, experts are employed on both sides and a layman's opinion is of little weight. Anything that could be said here would be more likely to mislead than to make plain. The quotation that follows is from one of the best modern texts.

That the task of classifying the different forms of insanity. is a formidable one appears in the greatly differing results which the best of medical experts thus far afford. Tests of causation, symptom and order of development, all of which have their undoubted uses in the study of mental disease, are not infrequently confounded in the most arbitrary manBut no hypothesis, according to sound modern authority, can be constructed which will meet with exactness every possible case of mental unsoundness that may come before the courts.

ner.

The many forms of mental infirmity that beset mankind. require the scientific study of the expert. Merely the enumera

Schouler, Wills, Executors and Administrators, Vol. I, p. 117.

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