Klenk Law

Lack of Capacity

A lack of capacity Will Contest arises when an interested person believes the testator wasn’t of sound mind when signing the Will. Though indicators of a person not having a sound mind, a person can be of sound mind while elderly, dying or diagnosed with dementia or Alzheimer’s. Other terms use for “Lack of Capacity” are “Lack of Testamentary Capacity” or “Mental Incapacity”

Elements of a Lack of Capacity Will Contest.

A person lacks the capacity to sign a Will if he didn’t know who he was, who his family was, his assets or if he didn’t understand the effect of signing the Will on his assets or family.

Proving a Lack of Capacity to the Court.

The judge hearing a Will Contest case can find the Will invalid due to Undue Influence only if he or she hears the proper evidence. Gathering this evidence will require depositions, expert witnesses such as medical professionals, interrogatories, witness interviews, subpoenaed documents and evidence presented following the Rules of Evidence and subject to objections by the Will’s proponent. Our experienced Will Contest Attorney will walk you through every step of this complicated journey.

Lack of Capacity Will Challenge Evidence.

Proving someone lacked the capacity to sign a Will requires proof including medical records and securing a doctor’s testimony.

Who May Bring a Lack of Capacity Will Contest Challenge?

Only an “interested party” may bring a Lack of Capacity Will Contest Challenge. A person would become an interested party if the Will created damages them financially.

For example, father, while competent, in 2010 signs a Will gives all assets equally to children A, B, and C and excluding child D. But, seven years later dementia renders him incapacitated. While incapacitated he signed a 2017 Will dividing his estate between children A and B. Only Child C is an “interested party.” Though excluded, Child D has no standing. If the 2017 Will is found invalid, Child D gains nothing, as the prior Will also excludes him. Therefore, child D is not an interested person.

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If you have any questions about a Will Contest based on Lack of Capacity or any other estate law topics, please contact us to schedule a free consultation.

For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and Probate clearly and concisely. If you are involved in Will Challenge Litigation, our experienced Probate Litigation Attorneys will make it easy for you to understand and provide top notch representation so you can make the best decisions for yourself and your family.

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