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Testamentary Capacity Issue 13 Testamentary Capacity fter a will or trust is executed, disputes may surface regarding the validity of the document because of the mental state of the deceased. FamilyA members and friends may claim that the content of the will or trust doesn’t reflect the intent of the deceased because of diminished mental capacities. Often, this issue is presented to a court for determination. Joshua O. Igeleke Jr. Attorney Determining Testamentary Capacity Testamentary capacity, or the lack thereof, may be evaluated under the Joshua practices in the following criteria: Firm’s trust and probate litigation, business law, Basic Understanding. The deceased has full understanding of what a corporate and commercial 1will or trust is, meaning the effect and consequences that come from law, and real estate law such a document, and an understanding that her property does not departments. Joshua and transfer until after death. Inherent to this understanding, is an appreciation other attorneys at the Firm for what her property includes and its approximate value. work closely with clients’ trust and estate planning Reasonable Claim. The deceased recognizes who has a reasonable professionals to maximize 2“right” to claim the property in question, that is, family members and/ clients’ opportunities for or friends, who would appreciate a bestowal of the property given its successful resolution of monetary and intrinsic value. disputes. Medical Condition. The deceased is not suffering from what is referred to as “diseases of the mind,” – a3 condition that prevents making rational decisions. Joshua may be reached This includes: alcoholism, drug abuse, delirium, de- at 702.385.2500 or mentia, psychotic/neurologic disorders (Alzheimer’s, [email protected]. Schizophrenia), and insanity. over PECCOLE PROFESSIONAL PARK 10080 WEST ALTA DRIVE, SUITE 200 LAS VEGAS, NEVADA 89145 702.385.2500 500 DAMONTE RANCH PKWY., SUITE 980 RENO, NEVADA 89521 775.853.8746 885 TAHOE BLVD. INCLINE VILLAGE, NEVADA 89451 775.853.8746 NOTICE: THIS IS AN ADVERTISEMENT! PRSRT STD US POSTAGE PECCOLE PROFESSIONAL PARK 10080 WEST ALTA DRIVE, SUITE 200 PAID LAS VEGAS, NEVADA 89145 Las Vegas, NV Permit No. 2470 las vegas | reno | incline village ...continued. Undue Influence and evidence establishes a lack of capacity. The burden is on the party challenging Testamentary Capacity capacity. However, there are success- When evaluating testamentary capac- ful challenges. Those cases tend to be ity, courts will consider consistency those where evidence supports dimin- of behavior as part of this evaluation, ished capacity through strong expert which may involve medical evaluations. testimony and/or witnesses who have Most medical tests performed pre- and experience with the deceased over pro- post-mortem focus on the deceased’s longed periods of time. ability to manage core cognitive do- mains of competency: comprehension Likewise, successfully proving undue Hutchison & Steffen is an of information, information process- influence is difficult, but can be real- AV-Rated, full-service law firm ing, and communication of decisions. ized through strong, direct evidence practicing in the following areas: If there are sudden changes in the of a person—often a beneficiary— deceased’s actions, lifestyle, or even be- exerting control or dominion over Administrative & Regulatory Law liefs, that could be evidence of lack of the deceased. Experts and percipient Alternative Dispute Resolution testamentary capacity. witnesses who can establish those Appellate Litigation circumstances are vital to a successful Undue influence is different than lack Asset Protection & Business Planning undue-influence claim. of testamentary capacity as it focuses Banking on outside forces interfering with the Bankruptcy & Creditor’s Rights deceased’s ability to make decisions Business Law & Commercial Litigation for herself as opposed to addressing Conclusion Condemnation Law her mental abilities. Undue influence Will and trust contests can cause emo- tional distress among families and of- Constitutional Law may take the form of coercion, manip- Construction Law ulation, threats, or even intimidation. ten involve serious allegations against Corporate & Commercial Law Claims of undue influence often arise family members or friends. Hutchison Election, Campaign, & Political Law when a beneficiary has been more ac- & Steffen’s Trust and Probate Litigation tively involved than others in the mak- Practice offers deep and broad legal ex- Employment & Labor Law ing of a will or trust and then receives perience, and its attorneys understand Family Law more of the benefits. the emotional strain experienced by Healthcare Professionals Advocacy all involved in a difficult process. That Human Resources Support is why the attorneys representing cli- Insurance Litigation ents in will and trust contests strive to Landlord/Tenant Challenging resolve the cases as effectively and ef- Personal Injury Testamentary Capacity ficiently as possible. n Challenging testamentary capacity is Professional Liability Defense difficult. The law presumes capacity. Public Entity Law Courts, therefore, favor upholding tes- Public Interest & Nonprofit tamentary intentions unless compelling Organizations Law Real Estate Law Tax Audits & Litigation Trust & Probate Litigation Worker’s Compensation 702.385.2500 [email protected] hutchlegal.com ©2018 HUTCHISON & STEFFEN.
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