legal instruments used by people to bequeath their property as per their wishes after death. They become effective at the death of the person and usually go to a probatory court to prove their validity. Wills can be revoked or replaced by a later will before death.
After a person dies, there can be disagreements among the beneficiaries over the will of the deceased. The two common issues usually raised are:
- Testamentary Capacity
- Undue Influence
What is Testamentary Capacity?
Testamentary Capacity is a necessary factor in the making of a valid will. It refers to a person’s legal and mental ability to make a will. The requirements of Testamentary Capacity include the testator – the person making the will – to understand:
- The nature, extent, and value of the property
- The natural beneficiaries of the will
- The disposition of the property that he/she desires to make
- The ability to relate these elements to form an orderly plan
Wills are usually challenged for lack of Capacity in the case of the elderly and disabled. For instance, a senior citizen who has Dementia, Schizophrenia, or a middle-aged person who has suffered a head injury may see their wills being challenged because of lacking a ‘sound mind.’
However, forgetfulness or weakness of mind is insufficient to invalidate a will due to a lack of Testamentary Capacity. Just because a person has a mental disease does not mean that he or she is not capable of making a valid will. If the will-maker has lucid moments and there are witnesses who can attest to those moments, then it is sufficient Testamentary Capacity to make a valid will.
On the contrary, if a person is unable to communicate orally, in written or by behavior, then that person is not competent enough to make a will.
What is Undue Influence?
Undue Influence is another issue raised to challenge a will. It occurs when the testator has the capacity to make a will, but that Capacity is controlled by another person with manipulative intentions. The third person asserts Influence over the will-maker and overrides their free will to create a will they wouldn’t have otherwise made.
Undue Influence and Lack of Testamentary Capacity are interrelated, and both can invalidate a will. However, it is not necessary that the two reasons occur simultaneously in the testator. After the will-maker passes away, attorneys review the mental Capacity and look for signs of undue influence over the person at the time the document was signed.
Additionally, the presence of Influence does not always tantamount to Undue Influence. For instance, a testator has two sons and makes a will to benefit them equally.
Over time, one son takes more time to take care of the testator and pleads for a larger share. The testator then alters the will and benefits the caregiving son more than the other. Such a scenario may not rise to the level that could challenge and invalidate the will because of Undue Influence. The incident does not amount to manipulation and coercion that could override the testator’s free will.
The Burden of Proof
Since the issues of wills and trusts are fact-specific, cases related to Testamentary Capacity and Undue Influence usually involve the burden of proof. It points out the responsibility of the party which is required to prove a fact. The question of who bears the burden of proof in will contests is fairly complex. The burden of proof can shift through procedural efforts made by the contesting parties.
The party filing the will in a probate court bears the responsibility of proving that the will is valid. Since there are complex legal terms, different state regulations, and multiple facets to probate a will, you may not want to experience the process alone. For instance, if you are contesting a will in a state like Texas, it may be wise for you to hire an attorney who is well versed with the regulations of will contests, Texas.
Once the court establishes the validity of a will, the burden of proof shifts to the party contesting the will. They have to prove undue Influence or the lack of testamentary capacity of the testator at the time the will was created.
The burden of proof in will contests is judged by a standard called the preponderance of the evidence. It means that the court will weigh the evidence presented by the contesting parties and tip the scales of justice in favor of the party that is most convincing. The evidence is weighed based on relevance and reliability and not on the amount that is presented.
To prevail in a will contest, you need a proper understanding of the legal terms and the regulations specific to your state. Be aware of Undue Influence and Testamentary Capacity when preparing and signing a will. In most cases, you’ll need a competent attorney to help you with the process.