Will Contests: Testamentary Capacity

Another good thing about being poor is that when you are seventy your children will not have you declared legally insane in order to gain control of your estate.Woody Allen

To execute a valid will, the testator, or executor of the will, must have testamentary capacity, which is the mental capacity to know:

  1. what property he actually owns;
  2. the natural objects of his bounty (his relatives and descendants);
  3. what a will is and how he is disposing of his property;
  4. and the overall scheme of disposing of his property.

Testamentary capacity is an important element of a valid will, since wills are often executed by older adults who may be losing their mental capacity to age and disease, and who may be subject to undue influence from people hoping to profit from the will. The requirement for testamentary capacity may also protect family members who may not receive the bulk of the estate because of misperceived realities or the undue influence of someone caring for the testator. In some jurisdictions, if the bulk of the estate does not go to immediate family members, then these courts may construe such disinheritance as evidence of a lack of testamentary capacity. However, such assumptions have been criticized as restricting testamentary freedom.

The testator only needs testamentary capacity at the time the will is executed, modified, or revoked. If the testator's mental capacity varies over time, but has lucid intervals, then the testator is deemed to have testamentary capacity if the will is executed, modified, or revoked during his lucid time.

Generally, a testator must be at least 18 years of age and be of sound mind. The legal concept of sound mind requires that the testator knows what property he owns, what he is doing in executing the will, and that the disposition of his property should be coherent, such as not giving away property that he bequeathed to someone else.

The law presumes that the testator has capacity and the standards for determining capacity are low—lower than the standards for contractual capacity. The rationale for requiring a greater mental capacity for contracts is that the contractor may make foolish decisions that could impoverish him and make him dependent on the state for support; hence, the state has an incentive to require greater capacity for contracts. However, how an individual disposes of his property at death matters little to the state so long as his dependents are provided for.

An attorney drafting the will also has an ethical duty to assess whether the testator has capacity, since otherwise all or part of the will could be nullified. However, the attorney can rely on his own judgment rather than getting a professional opinion.

There are 2 specific signs that the testator lacked capacity: insane delusion and undue influence. Generally, evidence that the will disposes of property contrary to what the testator intended or would likely have done serves as evidence of lack of testamentary capacity and the courts will generally strike all or part of the will where lack of capacity is in evidence. Sometimes,

Insane Delusion Held by the Testator: Did It Affect Property Distribution?

An insane delusion, as used in laws concerning wills, is a false idea that is either unsupported by the facts or is contrary to demonstrative facts, and where the testator cannot be convinced by any evidence that shows it to be false (hence, the name insane delusion rather than just delusion), and the delusion caused the testator to give less or nothing to the challenger of the will who is asserting that she got less because of the insane delusion.

Note, however, that someone can have an insane delusion, as defined by law, without actually being insane. Furthermore, the insane delusion must be rebuttable by demonstrative facts—facts that every rational person can agree as to its veracity. This would generally—but not always—excludes opinions, prejudices and other eccentricities, and spiritual or religious beliefs, most of which are based on unsupported facts, but which are still considered true by many people. However, a judge or jury may be more inclined to find an insane delusion if it is an unsupported belief that they do not believe or if the testator had eccentricities that the local people considered odd.

Hence, if the beliefs are contrary to demonstrative facts, and the testator never changed his mind even when presented with clear evidence to the contrary, then the testator would more likely to be found to have had an insane delusion.

The main point in an insane delusion challenge is not that the testator didn't have general testamentary capacity, but whether the insane delusion affected the property distribution in the will.

In most insane delusion challenges, the delusion usually is about one or more of the heirs that have been disinherited or received substantially less than expected. For instance, in Re Robertson's Estate, the testator believed that he had no children whereas it was easily demonstrated that he had 2 children by his 1st wife. In re Russell's Estate (Cal.) 210 P. 249, the testator had a daughter and treated her as such for 40 years, then suddenly started believing that she was not his daughter, even though there was no apparent rational basis for the change in belief.

There are 2 approaches used, depending on the jurisdiction, to adjudge rationality: the rational person test and the factual basis test. The majority of jurisdictions apply the rational person test, which simply asks if a rational person could have disposed of his assets in the same way as the testator. If so, then the testator is presumed to be rational. A minority of jurisdictions apply the factual basis test, which asks if there is any reasonable basis for the testator's disposition of his assets. If so, then the testator has testamentary capacity.

Since the factual basis test simply asks if there is any reasonable basis for the distribution, it is easier to satisfy, whereas the rational person test may let the judge or jury decide that a rational person would consider other facts in the distribution, and, thus, make it more likely that the testator will be adjudged irrational.

However, even if a testator is adjudged to be irrational, it wouldn't matter to the challenger of the will unless the challenger can also show that she would have received more if the testator were rational. The majority of jurisdictions use the but for analysis, which tries to answer the question that the challenger would have received more but for the insane delusion. Some jurisdictions only require that the insane delusion only had a possibility of lessening the amount given to the challenger of the will. Like the factual basis test, the but-for-test has a narrower scope and is more easily determined. Indeed, how can anyone prove that there was no possibility that the insane delusion did not affect the disposition of the testator's assets?

Courts are presumably loathe to rewrite wills, since any rewriting would be speculative, incur high administrative costs, and invite fraud, and, in fact, would remove any finality to any will, since the testator could not, with confidence, be sure that his will would not be changed. Nonetheless, the insane delusion challenge invites challenges to the will with the purpose of extorting payment from the estate. Since the insane delusion challenge is fact-sensitive, the challenge can rarely be dismissed with a summary judgment, and so, unless the estate settled, it would be greatly reduced by court costs and attorney fees.

Undue Influence Over the Testator

Undue influence arises when a party close to the testator convinces the testator to leave more of her estate to the party; hence, the receiving party is usually the defendant. There are generally 3 elements to proving undue influence:

  1. the defendant receives most of the testator's estate;
  2. the defendant had a confidential relationship with the testator;
  3. the testator was not of sound mind.

Some jurisdictions also require that the defendant was actively involved in the execution of the will. However, in a few states, such as Indiana, Iowa, Maryland, Mississippi, and Utah, a claimant can raise a presumption of undue influence, at least for some transfers, simply by showing that a confidential relationship existed with the testator.

If these elements are established, then the law presumes that the defendant did, indeed, exert undue influence, so the burden of proof falls to the defendant who must rebut the presumption. The burden of proof shifts because the defendant knows better what actually occurred, and, thus, is in a better position to rebut the presumption.

It was also common for religious leaders, such as priests, to exert undue influence to benefit their organization. This was so common that most states passed so-called mortmain statutes that allowed the surviving spouse or children to void death bed bequests, since religious leaders, who often had access to the decedent right before death, would often coax the decedent to make a bequest to their organization—to, in essence, buy their way into heaven. However, all mortmain statutes have either been repealed or declared unconstitutional, but such bequests can still be litigated as undue influence (UTC §406).

There is also a presumption—in most states, rebuttable, in others irrebuttable—that any gift to an attorney who advised the testator or who assisted with estate planning was the result of undue influence, unless the attorney is also a family member of the testator. Rule 1.8(c) of the Model Rules of Professional Conduct.