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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.  A person can be of sound mind or not have a sound mind while elderly, dying, or diagnosed with dementia or Alzheimer’s. These conditions may indicate a person couldn’t sign a will, but their mere existence alone doesn’t prove incapacity.  For the judge to rule the will invalid your Will Contest Lawyer must present evidence to the judge that the condition was so extensive the deceased didn’t have the appropriate capacity. 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. The 2010 Will gives all assets equally to children A, B, and C while 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.  We provide top notch representation so you can make the best decisions for yourself and your family.

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Peter Klenk ESQ is a thoughtful and capable attorney who we work with on estate planning issues. His firm recently provided us with new Wills, Power of Attorneys and our instructions regarding major health issues. These documents are important for estate and life planning. Peter and his team are masters in the complexities of Estate Law. We highly recommend Peter and his Associates to provide thoughtful advice and outstanding work on these complex issues of the law. Make sure your estate planning documents are up to date, and Peter can be relied on to do an excellent job. Well done Peter!

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Klenk Law is an exceptional practice. Their fine lawyers and staff team up to produce excellent results for their clients. They excel at explaining the often cryptic laws and policies that govern estate planning right down to the complexities of the various "trust" frameworks. Peter himself manages each client together with his great team, and he has a rare quality to be both a walking encyclopedia of planning minutia and also one of the most likable lawyers I have ever had the pleasure of dealing with. He is truly generous in intellect and in his personal approach to getting the "big picture" for complex family structures. I trust him implicitly to help me make the right choices for the future. In short, Klenk Law is a gem of a firm.

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