Many will disputes deal with the issue of testamentary capacity. In other words, the person whose will is being executed must be aware of what is going on for the will to be valid, i.e., the testator must have a lucid interval. A will can also be challenged by arguing that the will was procured as a result of undue influence. Most Will caveat proceedings will allege lack of capacity, undue influence, or both as the legal cause of action to overturn a Will.
Courts ask three questions in determining whether the testator had testamentary capacity at the time of will formation.
The elements of testamentary capacity are:
(1) Did the testator understand the nature of the act he was doing?
(2) Did the testator know the nature and character of his property?; and
(3) Did the testator know the natural objects of his bounty?
Obviously, if the answer to all three of these questions is yes then the testator had capacity and those contesting the will lose (those contesting the will have the burden of proving incapacity). The most important factor the courts focus on is the circumstances surrounding the the execution of the will. Essentially, the court looks to the testator’s state of mind immediately before, during or after the execution of the will to determine whether the testator had capacity. As long as the testator executed the will during a lucid interval, the testator’s failing memory, physical frailty, etc. will not serve as evidence of incapacity.
Those standing in a close confidential relationship need to be careful when executing wills for clients. In other words, attorneys must not stand in a position to substantially benefit under a will when drafting and executing a will for the testator, i.e., the client. In addition, one must be wary of strangers that suddenly become beneficiaries in the will of the testator. These strangers may likely use deceitful tactics and methods to force themselves into the will and force others out.
Those attacking a will’s validity on the basis of undue influence must prove three things:
(1) the existence and exertion of influence;
(2) its effect is to overpower the mind and will of the testator; and
(3) the result is a will that would not have been executed but for the influence.
Stop a Will Contest Before it Start with an Experienced Estate Lawyer
During an estate planning consultation, our experienced estate planning lawyers will discuss with our client details regarding his or her family, assets, and general well being before getting into the specific terms of a client’s Will. We are present at the Will signing, along with two disinterested witnesses from our staff and explain to a client (as testator) the terms of the will in order to make sure that the provisions adhere to his or her testamentary intent. We take these issues seriously and will decline to prepare or witness estate-planning documents for a client if the client lacks capacity or is being unduly influenced. As such, we will have no problem defending our work product if our client’s Last Will and Testament is challenged on the basis of capacity or undue influence upon his or her death.