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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.

What Our clients are saying

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Anne W.

I saw four lawyers and was told by all of them; I should just forget contesting my mother's will. I knew what happened, but it is very hard to prove undue influence. I contacted the Law Offices of Peter L. Klenk & Associates. Attorney Amanda DiChello took my case. They were very honest and upfront about what would be involved trying to prove what I knew was true. Attorney DiChello may be young but she is extremely knowledgeable and skilled. She listened and understood what I conveyed to her. She knew exactly what information to use and crafted an outstanding interrogatory and many powerful depositions. Attorney DiChello understood the various emotional feelings this case created for my family and me; she was always there for us with a kind and encouraging word. We went to trial. The amount of work which she and her Paralegal did for the trial was incredible. They both knew my case inside and out! Attorney DiChello's powerful interrogative and thinking skills produced a positive outcome. Attorney DiChello did what other seasoned lawyers said was impossible!

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Albert A.

You & your staff are the best thank you for everything.

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Maggie K

Peter Klenk is an extraordinary attorney with positive guidance and knowledge for all of your Trust and Estate needs. We have used him for over 20 years.

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CHARLES TOLL

Excellent, knowledgeable team handled a complicated issue with superb results.

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B.A.

Peter Klenk and his associates are responsive and professional - It is a pleasure to work with their team. If you have needs in estate planning or administration, they are the firm to go to in the Philadelphia area!

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