Ever since people started owning things, a system has developed to determine who gets those things when the owner dies. This system is called Probate. The principal tools for passing assets are Wills and Trusts. To determine if a Will is valid, and should be used to determine how assets pass at death, a system of rules has evolved.
One of the principal rules is that the person signing the Will must be competent.
What is Lack of Capacity?
To be respected, a Will must be signed by a person who at the time had the requisite mental capacity. The signature on the Will might be the deceased’s, but when he made his signature did he truly understand what he signed?
People will sometimes call me to say a Will must be invalid because it was signed by someone of advanced age or illness. But, just being very ill or sick is not enough for someone to lack capacity to sign a Will. The same is true of the date a will is signed. If the person died the same day as when they signed a Will that is not, in and of itself, enough evidence to void the will. These things might indicate that a person is incapacitated, but more evidence is needed.
To sign a valid Will must have the capacity to know and understand the Will’s purpose and terms. For example, the person’s education might be limited so they may not understand each legal word, but she must understand that the Will is giving instructions as to how her assets will be divided at her death. Further, the person must understand what she owns. This does not mean she knows the exact balance on every account. But, understands she owns accounts and understands that the Will is determining who will get them at her death.
Finally, the person must have the capacity to understand who would be the normal beneficiaries of her estate. She must understand that she has family and how the Will is then either including or excluding these people.
Capacity to sign a will is a lesser standard than taking part in other legal processes like signing a business contract.
A Successful Challenge.
To successfully challenge a Will based on Lack of Capacity the challenger must prove that the person, at the time they signed the Will, was not of sound mind. The did not have the capacity to understand their assets, family or the legal effect of signing the Will.
You can then see that a person is very ill, old or near death can sign a valid Will.
Factors the Judge Considers In a Lack of Capacity Case.
Typical evidence presented in a Lack of Capacity case would include medical records and an expert opinion based on those records. Typically, the challenger must hire a doctor to review medical records and produce a report concluding that the deceased did not have the requisite capacity to sign a valid Will. The person who supports the Will then strives to find a doctor who will say the opposite. Access to medical records is usually gained during the cases’ discovery portion.
The Results of a Successful Will Contest.
If the judge rules that the deceased Lacked Capacity to sign the Will, then the Will is void. The deceased’s prior will becomes the Last will. If there was no previous will, then the deceased’s assets pass under the Rules of Intestacy. Typically, during the Will Contest the estate’s assets are held pending the litigation results. Having your experienced Will Contest Lawyer secure the assets is essential.
Appealing The Results.
After the judge rules, there is a short amount of time for an appeal. Appeals to a higher court is a specialized legal area of legal practice. Most Will Contest Lawyers have never done an appeal, so consult with someone who has a proven track record.
In conclusion, Lack of Capacity is one of many ways to challenge a will. For more information, please read my more detailed article, Will Contests Explained for the Non-Lawyer.
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!
I was referred to Peter after my divorce to put documents together to protect my assets. He suggested a number of documents that would help protect my children and their future. Also, he put together wills, power of attorney and living wills. I initially spoke with him on the phone, he took 30-40 minutes to understand my situation and explain the benefits of having such documents. After a week or two, I met with him in his office and signed the documents. Everything else was remote phone calls and emails. He re-explained these documents and what whom to share. I am in good hands.
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