The Possible Grounds to Object: Capacity

Another major objection concerns the decedent’s testamentary capacity. A person is presumed to have sufficient mental capacity to make a will. In addition, an attesting affidavit and the supervision by an attorney also create a presumption of testamentary capacity.

The level of capacity required is a mere simple understanding of the disposition. Specifically the decedent must (1) generally understood the nature and consequences of executing a will, (2) generally know the nature and extent of the property that he or she is disposing of, and (3) generally know the natural objects of his or her bounty, and his or her relations with them.

Given this standard, you should focus on ascertaining the extent of the decedent’s communications, his appearance, demeanor, and responsiveness at and around the time of the will execution. You should examine the complexity of the will, how it was communicated to the decedent, and the level of sophistication of the decedent. You should also inquire about the interactions between the decedent and others present, whether the decedent’s family was discussed at any time, including the day of the will ceremony, and whether the attorney prepared a family tree or took notes about the decedent’s relations with others. Attorney billing records and the decedent’s phone records and emails may also reflect the level of contact the attorney had with the decedent.

An advocate of the will’s admission to probate will attempt to argue that the decedent was lucid and rational at the time the will was made, and that the decedent communicated effectively, knew who he or she was talking to and responded appropriately. You should be prepared to challenge the generalized conclusions often asserted by the witnesses about the decedent’s appearance and capacity. You should also review the decedent’s medical records (request authorizations from the estate to obtain them) to determine if the decedent suffered from any cognitive diseases such as dementia and what kinds of medications the decedent may have been taking.

Be careful not to rely too heavily upon on a person’s old age or general diagnosis. Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made.

In addition to learning about the decedent’s age and diagnosis, you should inquire about the decedent with neighbors, relatives, and hospital staff to find out whether they observed the decedent at or around the time of the will’s execution and whether they have any stories to share regarding the decedent’s mental status.


Leave a Reply

Your email address will not be published.