Incompetent to make a will
The legal definition of competence to make a will is essentially the same from state to state.2 At the time the will is signed, the testator must know:
• That he is making a will to dispose of his property after death
• The general nature and extent of his property
• Who would normally inherit his property (natural heirs)
Testamentary capacity also requires that the testator is able to form a rational judgment with respect to these 3 elements.8 The testator does not need to know the exact value of his property—an approximation is sufficient.9
Competence to make a will is a relatively low standard that requires less mental capacity than competence to execute a contract (wills, unlike contracts, have no adversarial interest), consent to treatment, or to stand trial.
EXAMPLE 1
A man with early dementia composes a will, leaving his home to a neighbor. He fails to provide instructions regarding disposition of his sizable bank accounts and other assets. The testator fails to acknowledge his son or daughter (both living out of state) in the will. Four years later the man dies. His son and daughter contest the will on the grounds that their father lacked testamentary capacity when he wrote the will.
In this example, the testator probably did lack testamentary capacity when he wrote his will. He did not understand the nature of his estate (failing to designate who would inherit his bank accounts and assets) or that his children were his natural heirs (he failed to mention his children).
The presence of a mental disorder does not automatically equate with lack of testamentary capacity. To affect competency, symptoms must directly impair the testator’s testamentary capacity.4
EXAMPLE 2
A man disinherits his daughter because, in his delusional state, he believes that she is poisoning his food.
EXAMPLE 3
In his delusion, a man believes that he is being monitored by government authorities. He leaves most of his estate to his children and the rest to charity.
In Example 2, the testator lacks testamentary capacity because his delusions affect his reasoning and cause him to disinherit his daughter. In contrast, in Example 3 the testator has testamentary capacity because his delusions do not impair his reasoning regarding his will.
Dementia associated with Alzheimer disease is becoming increasingly prevalent, and it may lead to an increase in the number of contested wills. The Mini Mental State Examination (MMSE) and the Revised Cambridge Examination for Mental Disorders of the Elderly (CAMDEX-R) are equally accurate predictors of testamentary capacity. Mild cognitive impairment on the MMSE (score of 20 to 26) was associated with a clinical finding of testamentary capacity in 93% of cases; moderate to severe cognitive impairment on the MMSE was more closely associated with lack of testamentary capacity.10
Undue influence
Undue influence is the influence of another person on the testator that substitutes the wishes of the other person for those of the testator.7 Susceptibility to undue influence depends on the intellectual capacity and mental status of the testator. It requires relatively less influence to control the will of a person whose functional abilities are impaired by mental illness or physical conditions that affect mental functioning.7 The testator’s age and general debility are relevant, as is a dependent relationship between the testator and the person unduly influencing the will.
Undue influence requires, in addition to a vulnerable testator, suspicious actions by the person alleged to have unduly influenced the will. The actions of the person allegedly exerting pressure or influence are assessed. There is a distinction between influence and undue influence. Influencing the testator by kindness and good deeds is not undue influence. Undue influence requires coercion, compulsion, and/or physical or psychological restraint so that the will does not represent the wishes of the testator. Persistent requests for an inheritance, urgings that the testator cannot resist, threats never to see the person trying to influence the testator again, or outright threats of harm constitute undue influence. Seclusion of the testator or denial of access to relatives may also indicate undue influence.7 Witnesses who observe the interaction between the testator and the person alleged to have exerted undue influence may provide evidence of inappropriate behavior.
