During the estate planning process, you hope your family will accept your final wishes, and it helps to discuss your estate plan with them so there are no surprises. But following the death of a loved one, hurt feelings and misunderstandings can become magnified by the emotions and stress, which can lead to a will contest. Here, we discuss one of the legal arguments used in contesting a will, that of capacity.
Family dynamics, feeling slighted, as well as blended family issues are often motivating factors for contesting a will. But these emotional issues are not actual legal, valid reasons for a will contest. A valid reason for contesting a will often focuses on the capacity of the person creating the will, who is called the testator. In order to sign a valid will, a person must have the mental capacity to do so, which is known as testamentary capacity. The testator must be able to understand:
- That they are creating a will;
- The value of their assets;
- The relationship of close relatives and friends; and
- The logical distribution of their property according to the first three elements above.
Contesting a will using a lack of capacity normally involves proving that the testator lacked the mental capacity to make a will due to dementia, senility, illness or insanity. Adults are presumed to have the capacity to make a will, and it is normally up to person challenging the will to prove otherwise.
An estate planning attorney can assist you with creating a will that can better stand up to a will contest, as well as take steps to establish the capacity of the testator when creating the will. An estate planning attorney can also assist with preparing a comprehensive estate plan to meet your estate planning goals and the needs of your family.
- Charitable Planning in Times of Crisis - November 1, 2021
- Advantages of Using a “Grantor Trust” in Planning - October 5, 2021
- Dangers of Do-It-Yourself Estate Planning - August 1, 2021
