In will contest, no need to oversell decedent’s capacity

Imagine a situation where a loved one dies and there is a contest over the validity of the will. The question arises: What was the decedent’s mental state in drafting the will?

A typical, knee jerk answer is that the decedent had a perfectly clear state of mind.

However, testamentary capacity doesn’t require such a high level of clarity in communication and comprehension. Further, overstating a decedent’s capacity might actually lead a trier of fact to become skeptical of the will proponent, especially if other evidence exists that the decedent’s mind wasn’t as clear as stated.

When a will is contested, the proponent has to prove that the decedent had the capacity to make the will. Meeting that burden requires showing that the testator knew the nature and extent of his property, knew the natural objects of his bounty and was aware of the contents of his will. Age and sickness aren’t determinative, and mental illness or failing memory do not preclude a decedent from having testamentary capacity to execute a will.

Cases on lack of capacity really come down to a he-said-she-said analysis. In one recent case in probate court in New York, an 83-year-old woman executed her will while in the hospital. A form in her records entitled “Adult Patient Without Capacity With Surrogate for DNR [Do No Resuscitate] Order,” stated, “I have determined that the patient lacks capacity to make this decision,” by reason of “dementia.” The records also noted that the woman became disoriented during dialysis the day she was admitted.

Yet the woman’s attorneys, whom she had known for years, said that her behavior at the time of executing the will was similar to that in her prior interactions with them and indicative of a sound mind. Further, her medical records from the day the will was executed said she was alert.

In this instance, the case didn’t go to trial. The court said that the parties protesting the will didn’t provide sufficient evidence to raise a triable issue of fact that the decedent lacked testamentary capacity.

However, in an earlier case before the same court, a woman in her eighties executed her will two years after suffering a debilitating stroke. A few months later she was found to be an incapacitated person under the state mental hygiene law. The court at that time said she needed one-on-one support and suffered from dementia.

Like the case noted above, evidence was offered on both sides. The proponent offered evidence that the attorney and others said the decedent was able to speak normally and understood her surroundings. However, the parties objecting produced evidence from a guardianship proceeding and the testimony of a treating physician that the decedent lacked testamentary capacity.

In this case, the court decided the case should go to a jury.

What happens in matters like these really depends on the facts and circumstances of the individual case. But it’s important to keep in mind that in order to prove capacity to execute a will, it isn’t necessary to demonstrate that someone who had challenges with verbal communication at the end of life or showed periods of confusion was of a perfectly clear state of mind. In fact, if you try to argue that too strongly, be aware that it might lead to skepticism on the part of the decider of your case.