In order for a document to be submitted to probate (the legal proceeding where the Will is interpreted and an estate is administered) as a legal Will, the document must meet certain statutory requirements. In addition to the document following a statutory form, the testator (the person making the Will) must have testamentary capacity to make the Will, and the Will cannot be the product of undue influence. Lack of testamentary capacity and undue influence are some of the most common reasons why a Will that appears to be validly executed is contested.
Key Terms
- “Undue influence” is a legal term that refers to when a testator’s intentions are substituted for that of the person influencing them. The person contesting the will must prove: (1) the testator was subject to or susceptible to undue influence; (2) there was an opportunity to exercise such influence; (3) there was a disposition to exercise the influence; and (4) the result was clearly the result of undue influence. It is the will contestant’s burden to prove undue influence.
- “Testamentary capacity” is a legal term that refers to the testator’s ability to understand the nature and extent of their assets, the nature and act of creating a Will, and the dispositive provisions of the will.
- Someone may lack testamentary capacity if they have a cognitive disease, such as Alzheimer’s, or if they are otherwise cognitively impaired due to medication they take. Without a doctor’s statement of incapacity, it can be very difficult to prove the testator lacked capacity to sign their Will.
- For instance, if someone lacks capacity for most of the day due to the effects of medication, but is lucid for the few minutes it takes for them to sign the document, the court will find they had capacity. It is the Will proponent’s burden to prove the testator had testamentary capacity.
Will Contests due to undue influence and lack of testamentary capacity are difficult, but not impossible, to succeed in. This is because the standard for testamentary capacity is low, and it is difficult to directly prove undue influence. The Nebraska Court of Appeals’ recent opinion in In re Estate of Walker provides an example of what a successful will Contest action looks like.
Case Study
In In re Estate of Walker, a Will executed just eleven days prior to Decedent’s death was submitted for probate. The Will disinherited three of Decedent’s four children. It gave all assets to one child, who was also named as the Personal Representative. One of the disinherited children challenged the Will, arguing that (i) Decedent lacked testamentary capacity at the time the Will was executed and (ii) that the Will was the product of undue influence.
The court heard testimony about Decedent being in hospice care at the time the Will was executed. It also heard that she was taking heavy amounts of pain medication, struggled to stay awake, and often would lose her train of thought when speaking. Meanwhile, the Personal Representative failed to provide more than very limited testimonial evidence that Decedent knew what she was doing when she signed the Will and it reflected her intention. The court found that the Personal Representative failed to meet his burden to prove testamentary capacity.
Next, the court considered whether the Will was the product of undue influence. The Personal Representative testified that he lived with Decedent, paid the mortgage on the house, and paid for various bills for Decedent. Critically, there was evidence that one year prior to the execution of the Will, the Personal Representative had threatened Decedent to do what he said and social services were called. The Personal Representative testified that he downloaded the form for the Will from the internet, and did not present any evidence that the Decedent read the document prior to signing. The two witnesses to the Will were the Personal Representative himself, and a friend of the Personal Representative’s and the Decedent’s. The other children frequently visited the Decedent and could have served as witnesses to the Will, but were not asked to do so. The court concluded that the Personal Representative knew that what he was doing was underhanded, and that the Will was clearly the result of undue influence.
Intriguingly, a prior purported Will was attempted to be introduced as evidence that the Decedent’s testamentary intent did not change when she executed the Will submitted for probate. This purported Will was executed five years prior and had identical dispositive terms, but was not properly executed because it only had one witness signature. Although not a legal Will, the court considered the document as evidence. However, the court gave the document almost no weight in making its decision. This is because there was no evidence of Decedent’s capacity at the time she signed that document. The court ultimately found it was not enough to support Decedent had testamentary capacity when she executed the Will five years later.
At Goosmann Law Firm, our litigation team is familiar with the intricacies of Will Contests. If you believe that a Will admitted to probate was the product of undue influence, contact a trusted attorney to discuss your options.
This blog is for informational purposes only and does not constitute legal advice. You should not act or rely on any information in this blog without first consulting a qualified attorney regarding your specific situation.