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If you’ve ever talked with an estate attorney, there is no doubt that a last will and testament was recommended by them as an option to pursue when it comes to estate planning. Although wills allow much freedom to the creator in what they handle, this freedom comes with a requirement for sound mental capacity by the testator, or creator of the will.

Although often a relatively difficult area to succeed in, it is entirely possible to contest a portion, or even an entire will, with enough evidence to prove the testator was not of sound mind when they wrote it. Let’s consider in what ways a testator might be unable to effectively write their will in a rational way. Perhaps they are suffering from a late-stage illness, such as Alzheimers or dementia. Maybe they are suffering from addiction that has impaired their mind and thought processes. There are many reasons for a lack of capacity, and we will explore the will challenge process under a lack of capacity claim in this article.

What Is a Last Will and Testament?

In brief, a last will is a written document detailing what a person wants done with their property and assets once they die. A properly written will is legally binding, and must be signed by the subject of the will, called the testator. A last will is essentially a list of instructions left behind by the creator of the will which are executed by a designated person called the “executor” alongside the courts, initiated by a legal process called “probate.”

What Is Lack of Capacity?

In order to create a valid will, the testator needs to have full awareness of the results and consequences of what they are saying in their will at the time of signing. There are three key things that must be satisfied in order to have a valid will:

1. The testator must grasp the expanse of their estate and assets;
2. The testator must understand who their beneficiaries are and what they are assigning them; and
3. The testator must not be suffering from a condition that would interfere with their ability to make rational decisions

A core phrase used in this area of will writing is that the creator of the will must be of “sound mind” while creating that will. For example, let’s say Anna’s grandmother, who suffers from schizophrenia, has decided to write her will. She has assigned some of her assets to people who she met at a bus stop the other day, and omitted the rest of her estate altogether. Anna can challenge her will if she feels that, if in a sound mind, her grandmother would not have written her will in that manner.

Getting the Chance to Challenge a Will

A will can be challenged in court for a variety of reasons, one of which is lack of capacity. After a testator dies, their will enters the probate process in court, thus validating the will and beginning the official estate distribution process. If someone wishes to challenge it before probate, or “pre-probate,” they can file a motion called a “caveat” to stop the probate from happening in order to pursue the challenge as a separate case. If probate is already underway, the “post-probate” process requires a separate filing in the same court.

Not everyone can challenge a will, either. Only those who are an “interested party,” or a person or group who is directly financially damaged as a result of the will in question can challenge it. Let’s go back to Anna’s situation where her grandmother rewrote and signed her will while having a schizophrenic episode. Despite her grandmother’s friend, someone not originally included in the will, wanting to challenge the grandmother’s lack of capacity, only Anna, or another beneficiary or excluded party from the original will, is allowed to challenge her grandmother’s will in this situation. Had her grandmother’s friend been named a beneficiary in a previous will of her grandmother’s, then she could be considered an interested party in this scenario.

How Do You Prove Lack of Capacity?

In order to show lack of capacity, the challenger of the will must prove a few things. A challenge to the will revolves around an analysis of the testator’s state of mind at the specific time they signed the will. This is very specific, as even someone with Alzheimer’s or dementia can be proven to still be of sound mind if they were able to sign their will during a period of lucidity. Simply having a diagnosed condition is not enough.

Usually, specific evidence and testimony are required to prove lack of capacity. These include:

• Medical records or testimony from doctors
• Testimony of people present at the signing of the will
• Testimony from friends, family, caregivers, and other people who would have a good idea of the normal intentions or state of mind of the testator

If the evidence presented is substantial and the court finds the testator to have been incapacitated at the time of executing the will, then the estate is redistributed. However, a lack of testamentary capacity is quite difficult to show as the level of capacity needed for creating a will is generally quite low. In most cases, attorneys who work with individuals to create estate plans will test their capacity to avoid this issue altogether. In the rare case that testamentary capacity is a successful challenge, the estate is redistributed based on the state laws of intestate succession as if the will had never been created and the original creator had died intestate, or without a will or estate plan altogether.

Evidence is incredibly important for a successful case. In order for a challenge to have any chance of success, records, testimony, and a rough timeline of events will be necessary to have before even speaking to an estate attorney.

Why Hire an Attorney?

Challenging a will is far from easy and is hardly a quick process, and a lack of capacity basis for challenge can be hard to show without plenty of evidence and testimony. Technically, no beneficiary can be barred from challenging a will, but only working with a qualified attorney will ensure the highest chance of success with a challenge, or even guidance on whether a challenge is the best option for remedy.

At Rosenblum Law, our experienced attorneys will work with you step-by-step to figure out whether contesting a will is a viable solution, and if so, the best way to navigate a contest. Call us now to get the process underway with a free consultation.