As the population ages, we are experiencing an increased frequency of cases where it is alleged that the testator lacked sufficient mental capacity to make a Will. Generally, the standard for mental capacity is very low and will be met if the testator can comprehend the extent of his assets, who his heirs are, that the Will is meant to dispose of his assets at death and also understands the actual distribution under the Will. Although there is a presumption that a testator is of sound mind and competent when he executes a Will, a claim may be pursued based on lack of testamentary capacity if any these factors are absent, or in the event that the testator suffers from a mental illness such as dementia. In order for a challenge to be successful, an expert will need to be retained to testify that the testator lacked capacity based on a medical condition and a review of the medical records. Witnesses to the execution of the Will and the attorney draftsperson also become key witnesses in the litigation.
Many times, it is left up to the attorney draftsman as to whether capacity exists, and whether additional precautions should be taken in preparing a Will for an elderly person. Sometimes, the proper precautions are not taken and an attack based on lack of capacity may be asserted. Before a Will contest is filed, these issues must be evaluated with an attorney in light of the underlying facts and the anticipated outcome.