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Proof of
Testamentary Incapacity
What does it take to Show someone is
Incapable of Creating a Will?
INTRODUCTION:
Just as when one
enters into a
contract, one cannot create a
Will
unless one has the mental capacity to do so. Normally, someone
challenging a Will must demonstrate that the person lacked that capacity
or that the person was subject to undue influence. Please see our
article on
Will Contests.
This article will
simply set out in one place the applicable statutory definition of
testamentary incapacity and a sampling of cases applying the relevant
test where the evidence was found insufficient to support a finding of
incapacity and cases where the evidence was found sufficient to support
a finding of incapacity.
Above all, it is
important to note that whether one has testamentary capacity is a
question of fact to be determined, if necessary, by a full trial. The
statute below gives the criteria and the cases below indicate instances
of determinations by juries that were upheld as valid by the appellate
courts. They are samples and whether a particular fact situation would
support or deny such a claim requires full analysis and good legal and
medical advice.
STATUTORY DEFINITION
OF TESTAMENTARY INCAPACITY
Cal
Prob Code § 6100.5 (2006)
§
6100.5. Persons not mentally competent to make a will
(a) An
individual is not mentally competent to make a will if at the time of
making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to be
able to (A) understand the nature of the testamentary act, (B)
understand and recollect the nature and situation of the individual's
property, or (C) remember and understand the individual's relations to
living descendants, spouse, and parents, and those whose interests are
affected by the will.
(2) The individual suffers from a mental disorder with symptoms
including delusions or hallucinations, which delusions or hallucinations
result in the individual's devising property in a way which, except for
the existence of the delusions or hallucinations, the individual would
not have done.
…………………………….
EVIDENCE SUFFICIENT TO SHOW INCAPACITY
Estate of Martin
(1969) 270 Cal.App.2d
Incapacity upheld
where the jury’s determination that general unsoundness of mind
extending over the period during which the October 10, 1963 will was
executed was supported by the following evidence.
·
Long
time friend testified that from 1962 on testator was childlike, senile
and confused as exhibited by, among other things, the inability to
recognize people close to him, even his wife, or confuse them with
others; accused hospital orderlies of boiling him in water; told
witnesses that colored people were killing each other in his living room
and having affairs in the adjoining bedroom; he kept a rock in a cottage
cheese container; hoarded empty medicine bottles, claimed he was
president of Union Oil Company; claimed he had an estate far greater
than he had; he continually proposed marriage to women he hardly knew.
·
His
accountant testified that in 1963 testator could not supply any
information about his property or financial condition; could not recall
what had happened to his stock or social security in recent years.
·
Testator’s nephew testified that from March to October 1963 decedent’s
mind deteriorated completely. Testator confused him with his father and
accused him of killing testator’s mother and could not remember the
nephew’s visits from day to day. In August 1963 the nephew found
testator on his porch partially clothe claiming he ad just ordered a
Greyhound bus to take him to Reno.
·
Testator’s physician from January, 1963 testified to testator’s bizarre
behavior and his diagnosis that testator suffered from arteriosclerosis
senile dementia.
·
Well
qualified expert testified as to the symptoms and effects of senile
dementia which comported with the behavior testified to by percipient
witnesses and further testified that based on his review of testator’s
medical records, testator suffered from arteriosclerosis senile
dementia.
Estate of
Lockwood
(1967) 254 Cal.App.2d 309
Testatrix, 89 years
old, was admitted to the hospital on February 20, 1964 with a panoply
serious, chronic and terminal illnesses and diseases. Testatrix executed
a codicil to her will, executed in 1958, on February 28, 1964 and died
on March 3, 1964.
-
Two attending
physicians who saw testatrix between the 21st and 29th
testified that she was at all times alert. The subscribing witness
to the codicil testified that testatrix was mentally alert at the
time of execution, knew what she was doing and answered questions
logically and understandably.
-
Three attending
nurses and a variety of visitors however testified that during the
same period, testatrix was often semi-comatose or in a stupor and
always confused, disoriented, unable to communicate or recognize
anyone.
-
A psychiatrist
testified form medical records, including autopsy reports, that
testatrix suffered form a hardening of the arteries in the brain and
was suffering from mental as well as physical impairment. Although
the doctor admitted that periods of lucidity might be possible, he
opined such was not likely given the arteriosclerosis and fever and
infection that prevailed at the time she executed the codicil.
Jury was entitled to
find from such conflicting evidence that testatrix, weakened by age,
serious illness and disease, lacked testamentary capacity, both before
and after she executed the codicil, and to infer there from that
testatrix lacked such capacity at the time the codicil was executed.
Estate of Bliss
(1962)
199 Cal.App.2d 630
Testator, age 83,
executed a new will in March, 1959, leaving his entire estate to his
male nurse, revoking an earlier will which left his estate evenly
divided to his nieces and nephew. The court found the following evidence
of incapacity to be “serious and exceedingly substantial”.
-
Testator entered
a sanitarium in Nov. 1958 diagnosed with, among other things,
chronic brain syndrome and structural brain damage that would affect
his behavior, personality, intelligence and coordination.
-
Testator’s own
attorney had twice in February of 1959 refused to make a will for
testator based on what the attorney perceived to testator’s lack of
mental capacity.
-
Testator’s
treating physician, who saw him regularly during the entire time he
was in the sanitarium, characterized him as senile, confused and
disoriented and stated that testator’s awareness was limited to the
presence of other individuals and his immediate physical urges.
-
The court put
much emphasis on the nursing notes for the relevant period
observing, “During February, March and April the bedside notes of
Cedar Lodge Sanitarium make numerous references to decedent's
condition. There are 83 references to the fact that he was confused
and disoriented; 21 references that he was lethargic or stuporous;
30 references to the fact that he was talking incoherently,
irrational, unable to speak clearly, unable to speak, mumbling, and
slurred of speech; 23 references to the fact that he was apparently
comatose or semi comatose, showed signs of cyanosis, eyes open and
staring, tremor in hands and arms, feeble, condition poor, condition
guarded. The total of the above references is 157.”
Estate of Wolf
(1959) 174 Cal. App 2d 144
The court found the
following evidence “abundant” support for a finding that testatrix
lacked capacity at the time she prepared her holographic will.
-
The testimony of
testatrix’s treating physician, who was a gerontologist, that
testatrix had been suffering from arteriosclerosis and had been
mentally incompetent for some years before executing the will in
question.
-
Her physician
treated testatrix on several days in the same month she executed the
will in question, including the day before the instrument was
executed and testified that during that period testatrix lacked
sufficient capacity to dispose of her property according to any
rational plan.
-
Testatrix’s
adjudication one month after executing the will as incompetent so
as to justify the appointment of a guardian, while not dispositive
testamentary capacity, constituted substantial evidence on which a
finding of testamentary incapacity might rest.
EVIDENCE INSUFFICIENT TO SHOW INCAPACITY
Estate of Goetz
(1967) 253 Cal.App.2d 107
Testimony of 3
doctors, including testatrix’s personal physician, that testatrix
suffered from chronic brain syndrome caused by senile dementia and
thereby lacked testamentary capacity, as well as unspecified evidence as
to testatrix’s forgetfulness, erratic behavior and possible delusions
was overcome by:
·
The
testimony of six acquaintances whose testimony as to testatrix’s
soundness of mind during the two years surrounding execution of the will
“was not shaken under cross examination
·
The
testimony of the attorney who prepared the will that testatrix was able
to name and provide the addresses of all her heirs at law, knew how her
property was held with her husband and was able to articulate why she
wanted her husband and daughter excluded form the will
·
Letters written by testatrix to her daughter around the time of the
making of the will that were “chatty, intelligent and well put together”
and exhibited orientation as to time and place.
Estate of Fritschi
(1963)
60 Cal.2d 367
Will contestants
failed to establish testamentary incapacity where unspecified medical
testimony describing testator’s minor irrational displays, personality
quirks, disturbed attitude toward his children and the general
weaknesses of a man afflicted with a terminal illness, and inconclusive
evidence of the effect on testator of various medication administered
prior to signing the will did not reach the ability of testator to
understand the nature of his act and was contradicted by:
·
The
testimony of both witnesses to the will that testator was of sound mind
when he executed the will and was able to joke about exploratory surgery
the next day
·
The
testimony of the attorney that he read the entire will aloud to testator
who followed along with a separate copy of the will and assented to each
paragraph after it was read.
·
The
testimony of a business associate who visited testator immediately after
the signing of the will and visited for 20-25 minutes during which
testator “talked sense”
Estate of Ross
(1962)
204 Cal.App,2d 82
Extensive evidence
of contestants that testatrix attempted suicide on many occasions
before and after the will was made, that she committed suicide, that she
was addicted to the use of barbiturates, had epileptic fits, took
psychiatric treatments for years, may have suffered brain damage from
the overdose of barbiturates in May 1957,prior to the execution of the
will in October, 1957, that she was despondent and erratic, that she was
under the influence of barbiturates on the day before the will was made,
that she lacked good judgment, made stupid investments and complained
about various things was insufficient to establish that she did not have
the requisite capacity at the time she made the will, particularly where
the declaration of testatrix’s attorney and his notes of his meeting
with her established that she knew the nature and situation of her
property, understood the act of making a will and knew the objects of
her natural bounty.
Estate of Sanderson
(1959)
171 Cal.App.2d 651
The testimony of
other residents of testator’s rest home that testator was destructive in
gardening at the home, was rude, easily angered, impatient, moody,
unable to keep shuffleboard score and had no mind to carry on a
conversation did not establish testamentary incapacity at the time the
will was executed particularly in light the following contrary
evidence:
·
Testimony of attorney and subscribing witnesses that at the time the
will was prepared testator was able to discuss who is relatives were and
what property he had, and articulated that he was excluding his brother
from the will because “ he was well fixed”
·
Testimony of testators attending physician that testator had the ability
to understand the nature of the testamentary act
·
Testimony of deputy district attorney acquainted with testator that
testator had testamentary capacity
·
Testimony of the credit manager that she had coherent business
conversations with testator
BRIEF SUMMARIES OF
MORE CASES DISCUSSING ELEMENTS OF PROOF OF INCAPACITY
Evidence Sufficient to Show Incapacity
Finding of
unsoundness of mind or undue influence or both is justified, where
evidence establishes that will is unnatural and that beneficiary
conspired with others to take advantage of testator's weakened
condition.
In re Estate of Gill (1936) 14 Cal App 2d
526, 58 P2d 734.
Mental unsoundness
of testatrix was sustained by evidence showing such progressive mental
degeneration following stroke of paralysis suffered about a year prior
to execution of will that month after will was executed testatrix was
adjudged incompetent, and where physicians who examined her a month
later testified that process of mental deterioration was too gradual to
see within 2 months' period, that she did not then know anything, not
even how many grown children she had, and that she was mere automaton
following suggestion of anyone.
Estate of Reiss (1942) 50 Cal App 2d 398,
123 P2d 68.
Finding was
justified that testatrix was weak in mind and body at time of execution
of will, in view of many incidents of her abnormal conduct, her attempts
at suicide and finally death by suicide, opinion of witnesses as to her
mental condition, disinheriting of her daughter and granddaughter in
favor of her second husband to whom she had been married less than 6
months, and finally opinion of doctor who examined her.
Estate of Teel (1944) 25 Cal 2d 520, 154
P2d 384.
Evidence sustained
finding that testatrix, a woman in her 80's, was not of sound and
disposing mind and memory at time of execution of codicil to will, where
number of intimate acquaintances testified that she was mentally
incompetent, reasons given for such opinion being that she was feeble,
forgetful, childish, rambling in conversation, ragged, dirty and unkempt
in person.
Estate of Johnson (1948) 85 Cal App 2d 760,
193 P2d 782.
The evidence
sustained a finding of testamentary incompetency, where there was
testimony of four attending physicians that the position of a cancer
responsible for the testator's death was such as to cause a progressive
and finally complete loss of mentality which, once lost, could not be
regained, and that from the condition of the testator when they saw him
last, he would have been incompetent two days before the proposed will
was executed.
Estate of Becker (1950) 98 Cal App 2d 574,
220 P2d 766.
Evidence showing
that decedent, from time he entered hospital until his death was in
terminal stages of cancer, which had paralyzed his vocal cords to such
an extent that it had become increasingly difficult for him to speak or
make himself understood, and that his intimate friends and close
relatives observed marked physical and mental changes during his
hospitalization such as inability intelligently to carry on
conversation, lack of interest in his surroundings and in those who
visited him, failure to recognize his close relatives, and inability
normally to engage in even a simple business transaction, justified
conclusion that decedent was of unsound mind at time of execution of his
last will.
Estate of Frank (1951) 102 Cal App 2d 126,
226 P2d 767.
Judgment denying
probate of will on ground that testator was not of sound mind when he
executed it is sustained by evidence, that, shortly before executing
will, he had many delusions, was feeble minded, did not know extent of
his property, believed he had farm which he did not own, and had been
adjudged an incompetent person.
Estate of Luhr (1956, 4th Dist) 138 Cal App
2d 265, 291 P2d 555.
Evidence supported
finding that testatrix was incompetent to make will where it appeared,
among other things, that she was very sick and not in full possession of
her faculties, and that she was mentally disabled for at least twelve
hours before her death.
Estate of Bourquin (1958, 4th Dist) 161 Cal
App 2d 289, 326 P2d 604.
Finding as to
testator's lack of testamentary capacity is sustained by doctor's
testimony that testator was not capable of recalling nature and extent
of estate, natural objects of his bounty, and of understanding nature of
testamentary act at time he was still under his medical care, where such
doctor was intimately familiar with testator's mental capacity and his
testimony was based on personal observation over number of years
preceding his death.
Estate of Wolf (1959, 2nd Dist) 174 Cal App
2d 144, 344 P2d 37.
Where there was
evidence from which court could reasonably infer that decedent suffered
mental deterioration in increasing degree from long continued excessive
use of intoxicating liquor, was in drunken stupor at time witnesses
signed document, had been laboring under insane delusion that his
daughter was stealing his money, and two weeks later had no recollection
of having made will, these inferences, coupled with his lack of any
idea, two weeks later, of what disposition to make of his property,
followed by suicide in another ten days, furnished adequate support for
finding that he was not of sound mind at time of execution of purported
will.
Estate of Kell (1961, 1st Dist) 190 Cal App
2d 286, 11 Cal Rptr 913.
Finding that
testator was of unsound mind when he executed his will was sustained by
evidence that, among other things, he was, at that time, unaware of
extent of his properties, and mentally incapable of transacting any
business.
Estate of Bliss (1962, 2nd Dist) 199 Cal
App 2d 630, 18 Cal Rptr 821.
In will contest,
there was substantial evidence of lack of testamentary capacity on part
of testator, where among other things, testator had been declared
incompetent by superior court half hour before he executed will; where
testator had combination of serious ailments and was kept alive by
intravenous feeding; and where testator's physician had left written
orders 15 days before will was executed advising no signing of legal
papers by patient.
Estate of Fossa (1962, 1st Dist) 210 Cal
App 2d 464, 26 Cal Rptr 687.
Evidence that
testator was subject to sustained delusions of persecution by his son,
of beatings administered, of money stolen, and of plan and purpose to
divest him of his property, together with testimony of testator's own
personal physician and psychiatrist that they were of opinion that
testator was incompetent mentally to make will, was sufficient to
support trial court's decision that when will was made, testator was
afflicted with senile dementia and was not competent to make will.
Estate of Turpin (1963, 3rd Dist) 222 Cal
App 2d 57, 34 Cal Rptr 812.
Evidence of
testator's lack of testamentary capacity was sufficient, as matter of
law, to sustain verdict for will contestant where it was shown that
testator's mental deterioration extended over long period with several
detentions in mental institutions, that he acted on unfounded belief
that his son was trying to have him permanently committed to gain
control of his estate, that doctors who treated him believed he was of
unsound mind as did insurance agent who prepared will and relatives who
witnessed it, and that agent who prepared will and relatives who
witnessed it did so only to quiet and please him.
Estate of Nigro (1966, 2nd Dist) 243 Cal
App 2d 152, 52 Cal Rptr 128.
In a will contest,
evidence of forgetfulness, erratic, unstable, and emotional behavior,
and of suspicion, probably delusional at times on the part of the
testatrix, does not establish lack of testamentary capacity unless
accompanied by a showing that it had direct influence on the
testamentary act.
Estate of Goetz (1967, 1st Dist) 253 Cal
App 2d 107, 61 Cal Rptr 181.
The evidence in a
will contest supported the jury's finding that the testatrix was not
mentally competent four days before her death when she executed a
codicil to her will, where at age 89 she was suffering from several
serious physical maladies, where there was testimony, albeit
conflicting, that on days immediately preceding and immediately
following the date of the codicil the testatrix was incoherent, semi
comatose, and unable to recognize intimate friends, and where one
witness testified that on the day of the codicil the testatrix showed no
recognition, understanding, or awareness of her surroundings, justifying
the conclusion that the decedent, weakened by age, illness and disease,
lacked testamentary capacity both before and after she executed the
codicil to her will, and the inference that such lack of capacity
existed at the very moment the codicil was executed.
Estate of Lockwood (1967, 1st Dist) 254 Cal
App 2d 309, 62 Cal Rptr 230.
In a will contest,
there was substantial evidence to support the jury's verdict and the
judgment of the trial court denying probate, where the testator suffered
from unfounded delusions that his nephew (who was his sole heir at law
and the sole beneficiary and executor of a prior will) had killed
testator's mother and was planning to put testator in a mental
institution in order to get all of his money, and that the beneficiaries
of the contested will would see to it that this would not happen and
would otherwise take care of testator, where such delusions caused
testator to become bitter toward his nephew, where a psychiatrist gave
his expert opinion that the deceased was, at the time of making the
contested will, suffering from a mental condition which produced
delusions and loss of memory for events of the present, and where there
was abundant testimony by testator's close friends and associates that
he was suffering from general unsoundness of mind extending over the
period during which the contested will was executed.
Estate of Martin (1969, 1st Dist) 270 Cal
App 2d 506, 75 Cal Rptr 911.
Evidence Insufficient to Show Incapacity
Evidence supported finding that testator was competent, though he was
ill, and under treatment involving use of sedatives, when he executed
codicil. Seiler Estate (1917) 176 C 771,
170 P 1138.
Nonsuit was
warranted where evidence was inadequate to show testamentary incapacity.
In re Estate of Fraser (1918) 177 Cal 266,
170 P 601.
Evidence justified
finding that testator was not suffering such degree of mental incapacity
as would prevent him from making valid will.
In re Estate of Phillips (1927) 202 Cal
490, 261 P 709.
Testimony offered to
establish general mental incompetency of testatrix was insufficient,
where no witness gave opinion that she was of unsound mind or
incompetent at any time, and, though testatrix was elderly woman and had
suffered stroke previous to her death, and some witnesses testified that
she was feeble and not very keen mentally, and that she was not exactly
in her right mind at all times, reasons given for these answers were
wholly insufficient to show unsoundness of mind, and there was entire
absence of any substantial evidence of general mental incompetency.
In re Estate of Peterson (1936) 13 Cal App
2d 709, 57 P2d 584.
Findings were
sustained by evidence that husband was not incompetent and did not act
under insane delusion in placing property in joint tenancy with his
wife.
Sanders v Crabtree (1941) 44 Cal App 2d
602, 112 P2d 923.
Evidence was
insufficient to show testator's incompetency to execute will where it
merely showed that deceased had been pronounced mentally incompetent
nearly 2 years after will was executed, and that, until shortly prior to
that time, he had been active businessman who suffered no mental or
physical disturbances which appreciably affected his ability to carry on
his work and to deal with his property, though at times he was nervous
and excitable and, after his wife's death appeared to be much
grief-stricken and depressed.
Estate of Buthmann (1942) 55 Cal App 2d
585, 131 P2d 7.
In a will contest,
the court properly granted a nonsuit on the issue of the testator's
incompetency, where evidence as to his pain and critical condition when
he signed the will failed to disclose any irrationality or
unconsciousness of his surroundings at that time, and where the executed
will was essentially the same as one prepared at his request.
Estate of Greenhill (1950) 99 Cal App 2d
155, 221 P2d 310.
A finding that
testatrix possessed testamentary capacity is sustained by the testimony
of a heart specialist that although he was of the opinion she lacked
such capacity on the day of her admission to the hospital, she might
have "retrenchment improvement at some time;" by testimony of her
attending physician that she answered questions rationally on the day
the will was executed; by testimony of her surviving brother that she
insisted that he prepare the will and after reading it expressed her
satisfaction therewith before signing it, and by testimony of the
subscribing witnesses that they found her rational, that she thanked
them in a loud, clear voice for signing, and that she signed her full
name without assistance or prompting.
Estate of Gill (1952) 111 Cal App 2d 486,
244 P2d 724.
It is proper to
grant a new trial on the ground of insufficiency of evidence to sustain
the jury's findings that decedent was of unsound mind and operating
under undue influence at the time of executing her will, where the
evidence discloses that she executed the will in the presence of her
attorney and his office secretary, both of whom testified that decedent
was then of sound and disposing mind and not acting under fraud or undue
influence of any person or persons.
Estate of Elliot (1952) 114 Cal App 2d 747,
250 P2d 684.
Finding that
testatrix did not lack testamentary capacity to make will is sustained
by testimony of witnesses that she was able to manage her property and
transact business affairs, that she was of sound mind and disposing
memory, and that she knew extent of her property and nature and effect
of her testamentary acts.
Estate of Volen (1953) 121 Cal App 2d 161,
262 P2d 658.
Evidence is
insufficient to establish testamentary incapacity where contestant's
affidavits fail to reveal any fact from which it could be inferred that
testator did not understand nature of act or was not cognizant of the
nature and situation of his property or his relation to those having
claims on his bounty, and where opinions as to unsoundness of mind are
based on facts which show neither morbid delusion nor total incapacity.
Estate of Goddard (1958, 2nd Dist) 164 Cal
App 2d 152, 330 P2d 399.
Mute evidence of
testator's competency is borne out where will mentioned both contestant
and proponent, correctly indicating their relationships to author,
accurately recited approximate amount and location of cash constituting
estate, indicated intent to revoke former will, and expressed intent to
dispose of property in such terms as rather clearly indicated
appreciation of testamentary nature of act.
Estate of Glass (1958, 2nd Dist) 165 Cal
App 2d 380, 331 P2d 1045.
Lack of testamentary
capacity is not proved by merely showing a few isolated acts, foibles,
idiosyncrasies, moral or mental irregularities or departures from
normal, unless they bear directly on and have influence on testamentary
act.
Estate of Woehr (1958, 2nd Dist) 166 Cal
App 2d 4, 332 P2d 818.
Assertion that
evidence established as matter of law decedent's inability to recollect
or understand nature and situation of his property and to remember
persons having claim on his bounty is dispelled by testimony of
contestant's witness that decedent knew of his relationship to
grandchildren, that his son and proponent were his children, that he
know of existence of certain, if not all, of his property and that
proponent and his son were managing same.
Estate of Woehr (1958, 2nd Dist) 166 Cal
App 2d 4, 332 P2d 818.
Testimony of
residents with deceased at rest home that he was destructive in pruning
bushes and trees, that he could not keep shuffle board score, that he
could not carry on continuous coherent conversation, that he grew into
rage over nothing, that his room was untidy or like pig pen, that he
became irritated because witness would not accept his religion, that he
said he was going to start new religion, and the like, was insufficient
to show deceased was lacking in qualities of mind necessary to make
competent in testamentary capacity.
Estate of Sanderson (1959, 4th Dist) 171
Cal App 2d 651, 341 P2d 358.
Where none of
witnesses in will contest testified as to events at time will was
executed or as to testator's mental condition at that time, but their
testimony was to effect that he knew and understood condition of his
property, remembered his brother who was his nearest relative but
affirmatively decided his brother did not need help, that he had been
member and attendant of Catholic Church for considerable time previous
to death, and that he had no other known close relatives, there was
nothing unnatural in his bequest to Catholic organizations and evidence
was insufficient to sustain finding he was not competent to make will on
date he executed it.
Estate of Sanderson (1959, 4th Dist) 171
Cal App 2d 651, 341 P2d 358.
In will contest on
ground that testatrix had been incompetent to make will, evidence was
insufficient to justify setting aside probate of will where, though it
was shown by contestants that testatrix had committed suicide, that she
had attempted suicide 11 times, that she had had epileptic seizures,
that she had used alcohol and barbiturates excessively, and that she had
had psychiatric care, proponents showed that her knowledge of extent of
her property when will was made was borne out by her holdings at time of
her death, that her attorneys and witnesses to her will believed her to
have had testamentary capacity, and that contestants and others had
contracted with her and had not questioned her competency to enter into
contract.
Estate of Ross (1962, 2nd Dist) 204 Cal App
2d 82, 22 Cal Rptr 135.
Presumption of
testator's sanity was not overcome by evidence which simply set out
physical weakness of man afflicted with fatal illness, describing minor
irrational displays and certain personality quirks, and showed that
certain drugs administered to testator would "tend" to make individual
more sleepy or groggy than usual sedative does and would "tend" to
decrease person's ability to think clearly, but that effect on person's
mental abilities would depend on individual; particularly was such
evidence insufficient in light of uncontradicted testimony of those
present and following execution of will that testator was of sound and
disposing mind at time he signed it, that he followed reading of will
and expressed assent after each paragraph and that he "talked sense"
immediately after execution of will.
Estate of Fritschi (1963) 60 Cal 2d 367, 33
Cal Rptr 264, 384 P2d 656.
Showing adjudication
of testator as mentally ill person, dangerous to himself, and in need of
care and restraint, without offer of testimony of symptoms that went
into court's determination does not establish mental degeneration
denoting utter incapacity to know and understand that which law
prescribes as essential to making will or existence of specific insane
delusion affecting making of will.
Estate of Nelson (1964, 1st Dist) 227 Cal
App 2d 42, 38 Cal Rptr 459.
CONCLUSION: WHAT
DOES IT ALL MEAN AND HOW TO EVEN AVOID THE FIGHT
A doctor once put it
to us quite well: people often die in bits and pieces. They lose the use
of their knees or legs or back and as the years go by, lose the use of
more and more of the body they once took for granted. At some point,
organs may start to go, from kidneys to heart, from lungs…to the brain.
And when the brain starts to go it can go very slowly, in fits and
starts and that’s when the problems arise.
The courts want to
give people the power to leave their assets to the people they wish to
and the burden of proof of incompetency is high. All things being equal,
if the Court is doubtful as to whether a person is incompetent, the
court will normally uphold the will.
Yet will contests
are common and the subsequent turmoil and heartbreak within families is
a typical scene in the courts. The simple fact is that many people in
the last years of their lives often use their assets to attempt to exert
power over their children and relatives who they fear will otherwise
abandon them, often making promises and threats that disrupt the
relationship. Equally common, caregivers, friends, and one or two of the
family who once did not spend much time with a dying relative or client
suddenly appear daily and perhaps hope to obtain an increase in
inheritance. Or others fear they will. All this leads to the fights
described above.
How to avoid this?
The easiest way, and a way too little used, is for the attorney creating
a new Will or altering an old one to carefully go through a checklist of
questions before a video camera with the testator, including asking
numerous questions that will show competence and that no undue influence
is being used. We have done this regularly and our experience is that
when possible contestants see the video tape they are relieved and no
fight ensues.
And before you
decide to fight get good advice. First, quite often there is a special
clause in the Will that will disinherit you if you contest. (See our
article on
Will contests.)
Further, Trusts are held to completely different criteria than a Will
and quite often people assume that the competency level required for a
Will is the same as for a Trust. It is not, and good legal advice is
critical before one takes that important step of deciding to contest a
Will. |
