A lack of testamentary capacity is one of the main ways to challenge the validity of a will. Undue influence, the presence of a later will or a codicil, and a lack of will formalities are the other common methods. One may assert a lack of testamentary capacity if a testator (the person who prepares the will) had dementia or Alzheimer’s at the time the will was prepared.
There are specific requirements that must be met to show a testator was not of sound mind at the time the will was prepared. If the will is determined to be invalid, then the estate of the testator/decedent will normally pass through the intestate laws of Tennessee. The intestacy laws generally provide that the spouse and/or children are awarded the estate. If the decedent did not have a spouse or children, then the parents are entitled to the estate.
How do you show a lack of testamentary capacity?
Generally, the person who seeks to invalidate a will must show that the testator could not meet one or more of the following conditions:
- The testator should understand the purpose of preparing a will. The testator should understand that the will determines who gets his/her property when he/she dies.
- The testator should understand the extent of his/her property. This doesn’t mean the testator needs to know the precise value of each and every item. The testator should know he/she has a home, bank accounts, retirement benefits, and have a general idea of his/her other assets.
- The testator should understand the disposition of the property. The testator should understand who his/her natural heirs are (spouse, children, parents, and other relatives). The testator should also know that the will designates which relatives, friends, charities, or other beneficiaries will receive which parts of the estate.
- The testator should understand the “natural objects of his/her bounty.” This means the testator should understand which of his/her relatives will inherit the estate if he/she dies and no valid will exists.
Who can contest a will on the grounds of lack of testamentary capacity?
Not everyone can contest a will. The people who can contest the validity of a will based on a lack of testamentary capacity include the natural beneficiaries of the estate and anyone who can show they have standing to benefit from the will.
What conditions help prove a lack of testamentary capacity?
Testators who have the following conditions may not have the mental capacity to prepare a will:
- Parkinson’s disease.
- Intoxication or drug use at the time the will is prepared.
These conditions all have different definitions and different effects on a person’s mental capacity. A competent physician will need to explain whether they would cause a lack of testamentary capacity on a specific individual.
Some of the conditions that do not confirm a lack of testamentary capacity include that:
- The testator was “eccentric.”
- The testator was very old.
- The testator was uneducated.
How can an executor show the testator does have testamentary capacity?
Generally, if all other formalities such as having witnesses are met, wills are presumed to be valid. The burden is on the person contesting the will to show the decedent lacked testamentary capacity. In many cases, a gerontologist or family physician will testify about the decedent’s mental state at the time the will was prepared.
The executor, other family members, friends, and anyone who knew the testator can testify as to their observations about the decedent’s mental state. While they can’t state an opinion on the case, they can testify that the decedent was alert, was able to follow a conversation, talked about his/her family in loving terms, and other observations.
If the testator took any steps to help confirm his/her mental state at the time of the will preparation, those actions can be introduced at the testamentary capacity hearing.
How can a testator help prove his/her mental capacity when drafting a will?
Skilled Chattanooga probate lawyers help testators anticipate future issues, like will disputes, by taking steps to confirm their mental capacity when drafting their will. These steps can include the following:
- Having a physician perform a mental evaluation shortly before the will is prepared.
- Taking a video of the testator at the time of the preparation of the will. The video can address core testamentary capacity issues, such as asking the testator to identify his/her relative, the type of assets the testator owns, the approximate value of the assets, and other factors.
- Including a provision, called a “no-contest” clause, that penalizes any beneficiary who contests the will by voiding that person’s interest. The clause generally applies if the beneficiary loses the testamentary capacity hearing. If the beneficiary wins, then the will is invalid and the clause does not apply. The clause only applies to beneficiaries who contest the will, not non-beneficiaries. A beneficiary is anyone that the testator designates should have a share of the estate.
- Maintaining current addresses of any witnesses to the signing of the will.
A major concern lawyers seek to address is that testators who lack testamentary capacity may also be subject to undue influence by an heir who wants to ensure he/she gets a sizeable portion of the estate. In addition to medical reviews and videos, lawyers will review various estate planning options with the testator while he/she retains testamentary capacity.
At Wagner & Wagner Attorneys at Law, our Chattanooga probate lawyers help litigate wills, as well as assist executors and representatives administer wills and estates. We are thoroughly experienced at filing will contests and defending will contests. To discuss all aspects of probate including litigation, call us at 423-756-7923 or complete our contact form to schedule an appointment. Our lawyers represent clients in Chattanooga and Cleveland, and throughout Tennessee.