The Law and You Will Contests

This month’s column treats the subject the burden of proof of testamentary of will contests. It is timely for me incapacity is on the contestant of a will because I am in the midst of a serious legal Now the standard for testamentary battle over which of the deceased’s wills is capacity is much lower than a person’s valid. capacity for other activities of daily living. The Probate Code governs some For example, a person may lack general rules about wills to ensure their sufficient capacity to transact his ordinary validity and to prevent unfounded claims business affairs and yet have capacity to for a share of the deceased’s estate. After make a will. all, the deceased can’t testify how he or That is, a decedent's inability to she intended to distribute his or her estate. manage his ordinary business affairs does The primary and usually only evidence we not justify a presumption of testamentary have is the testator’s will. incapacity. This is because contractual Although a will meets all of the capacity and testamentary capacity involve formalities required by the Probate Code, two separate legal standards. The standard someone can still challenge it. for testamentary capacity is lower than that To be a self-proved will, two required to transact business. witnesses must observe the testator sign Challenges to wills are often based on his or her will and then those witnesses the testator’s capacity at the time the will must sign the will in each other’s presence was signed. But even though a guardian or and in the presence of the testator. Finally, conservator may have been appointed for the testator must also sign the will again in the testator at the time the will was signed, the presence of the witnesses attesting to the testator may still have had testamentary the presence of the witnesses. capacity. If the will is self-proved, however, Where all that has been adjudicated is compliance with signature requirements the testator's inability to contract or for execution is conclusively presumed manage his or her on-going financial and other requirements of execution are affairs, testamentary capacity may still also presumed, subject to rebuttal. exist. But even if a will was in fact signed Another common challenge is undue by the testator in the presence of two influence. Assuming that a testator has witnesses, a challenge can be made that testamentary capacity, the challenger will the testator was not competent when the claim that the testator was subject to undue will was signed. This kind of challenge influence when the will was signed. most often avoids the term “competent.” Undue influence is difficult to prove, Rather, the challenger claims that the but if proven, the will can be found by a testator lacked “testamentary capacity.” court to be invalid. The burden of proof, The general rule is that a testator is however, is on the challenger of the will. presumed competent to make a will, and Claims of undue influence most often arise when a testator leaves his or her And the Probate Code requires that estate to someone outside the family. It contestants of a will have the burden of also arises when a family member named establishing lack of testamentary capacity in the will is to receive a substantially or undue influence. Nonetheless, if you disproportionate share of the testator’s are involved in a will contest, you should estate. consult a knowledgeable Elder Law When a child or other family member Attorney. Check your local Yellow Pages provides substantial care for a testator and or the National Academy of Elder Law is then the recipient of all or most of the Attorneys at (520) 881-4005, or on their testator’s estate, other family members web site at www.naela.com. suspect undue influence has occurred. But mere opportunity, interest, confidential relation or a weakened physical condition of the testator do not by themselves give rise to undue influence. Undue influence requires more than mere suspicion. It must be based on substantial facts. Will contests are very difficult cases. This is particularly true when the will is self-proved and prepared by an attorney who also is present during the signing.