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WILLS AND WILL CONTEST WILLS GENERAL INFORMATIONThe admission of a Will to Probate and the granting of Letters Testamentary to the personal representatives is a judicial act. The laws relating Probate and of the contesting of a Will must be strictly observed and exclusively applied. The right to give or receive property by Will or through intestacy at death is not a nature right. It is a privilege created by a statutory grant and the exercise of which may be controlled by statute. Over the years, the statutes relating to Wills have given to a testator the power to dispose of his or her property by Will as he or she pleases within limits prescribed by law so long as the disposition is lawful and not contrary to public policy and so long as the testator has the requisite mental capacity, the making of the Will is free from forgery, fraud, undue influence or an insane delusion affecting the disposition of the property. A bequest or devise is not unlawful or contrary to public policy because a testator imposes restrictions thereon, discriminates against some of his nature heirs or all of them, or because he or she exhibits a prejudice. A
WILL SHOULD NOT BE DECLARED INVALID EXCEPT FOR COMPELLING REASONS. The law of the decedent's domicile defines his testamentary powers as to personal property (money, tangible property, etc.), while the law of the place where the estate is located defines testamentary power over that real estate. The term “bequest” refers to a gift of personal property and the term “devise” refers to a gift of real property. An individual is competent to take by devise or bequest regardless of whether he is a resident, non-resident or an alien. A corporation may take by bequest any personal property or any interest therein which may be appropriate to enable it to accomplish fully and properly its corporate purposes; and it may take by devise real property, or any interest therein, which may be necessary and proper for its legitimate businesses. The right to do so take extends to foreign corporations. A devise or bequest to an existing religious society, if made more than thirty (30) days before death, is valid if the society, although unincorporated at the time of the testator’s, is subsequently incorporated. However a bequest or devise to a corporation or society not in existence at the time of the testator’s death is void. A testamentary disposition is subject to modifications by circumstances. At best, the testator’s death within thirty (30) days of making a Will voids a devise or bequest to a religious or charitable cause A marriage of the testator after making the Will gives the survivor spouse the right to a share of the estate to which he or she would have been entitled had the testator died intestate (without a Will) unless the Will gives him or her a greater share. A divorce after a Will is made makes ineffective all provisions of the Will in favor of or relating to the former spouse unless specifically stated otherwise in clear unequivocal language that the testator intended the gift even though a divorce may or has occurred. When there is a failure to provide for a child born or
adopted after the making of the Will, unless it appears the failure was
intentional, such child is entitled to that part of the estate to which he or
she would have been entitled if the testator had died intestate.
The statute relating to after born children relates only to children of
the testator, not to grandchildren. One who participates as a principal or accessory before the fact in a willfull and unlawful killing of the testator is excluded from any benefits provided for in the Will. A testator, without giving a reason, may exclude anyone from a class of beneficiaries he provides for except the surviving spouse who has a statutory right to elect against the Will. A person who has deserted or failed to provide for his or her spouse and has deserted the other for a year or more, or a surviving spouse who has participated as a principal or accessory before the fact in the willful and unlawful killing of the testator, forfeits the right to take against the Will. The above facts may establish the right to participate in the estate of a decedent or to exclude a person from participating in the decedent’s estate; if any of the above circumstances exist, one may contest the Will. WILL CONTESTSome of the frequent allegations in a Will contest are undue influence, fraud, mistake, (based on false data), lack of testamentary capacity, lack of memory, partial insanity and/or delusion, peculiar belief or opinion, eccentricity, physical condition, old age and/or the use of liquor or drugs. The law provides in general that any person of sound mind 18 years of age or older may by Will dispose of all his real or personal property subject to the payment of debts and charges. The want of a sound mind required for testamentary purposes is not necessarily the equivalent of the insanity which will acquit one of a criminal charge and therefore a Will may be set aside for a lessor degree of insanity. An unsound mind for testamentary purposes may co-exist with an apparent use of the faculties in many respects and an adjudication of incompetence or insanity is not conclusive of testamentary incapacity. This is because such an adjudication is prospective only in its application and does not of itself nullify a Will previous executed or even a Will executed on the day the incompetence proceedings were begun. Concerning the nature and measure of capacity, it is impractical to lay down any hard and fast rule as to what will constitute the sound mind the law requires of the testator in order that he or she may make a valid testamentary disposition of property since what might in one person be evidence of testamentary incapacity will in another fail to show such incapacity. Accordingly, each case necessarily depends upon its own peculiar facts and circumstances. Concerning the degree of capacity, the required necessary degree to execute a Will is not as great as that required to carry on ordinary business. In other words, it is not necessary that the intellect of the testator be in its most perfect state of integrity and possesses all its original force and vigor. Capacity to distribute property by Will does not require the strength and vigor of a person able to digest all parts of a contract. Less mental capacity is needed to make a valid Will then is sufficient in most cases to transact ordinary business, to convey real estate, to make a contract, or even to make a gift. Perfect memory is not required but a testator must have memory. A person in whom their memory faculty is totally extinguished cannot be said to possess understanding to any degree whatever, for any purpose. However, a loss of memory on occasion, whether due to old age or disease, does not show testamentary incapacity unless it is total or extends to the testator's property or his immediate family. A partial loss of memory is insufficient to cause testamentary incapacity.
Partial insanity and delusions. An insane delusion, legally defined, is an insane belief or a mere figment of the imagination, or a belief in the existence of something which does in fact not exist and in which no rational person, in the absence of evidence, would belief to exist. It is a positive or affirmative mental act, not a mere negation or denial, and when there is evidence or a ground for the belief, it is not a delusion. That which is alleged to be a delusion must render the testator incapable of making a rational disposition of its property; and it must be more than a prejudice, however unreasonable, or mistake a fact, however absurd. Partial insanity, monomania and insane delusions, when they do not affect testamentary disposition, do not destroy testamentary capacity; but if the provisions of a Will are directly affected, it is invalid. In other words, the showing of the existence of a delusion which does not affect testamentary disposition is not enough to establish testamentary incapacity since a partial unsoundness of mind, monomania, or insane delusion which does not affect testamentary disposition and does not destroy testamentary capacity. A delusion or partial insanity is not established by a showing alone of strange and whimsical conduct, a suspicious and irritate nature, nervous excitement and apprehension caused by the imminence of major surgery or by a quarrel or by a mistake as to property values. When a testator excludes one who would be a natural object of his bounty and the exclusion is caused by a delusion, the Will is invalid. However, the mere fact that a testator omits a child or relative is not in itself evidence to establish a delusion. Thus a disinheritance with reason or cause is well within the testator’s rights. An example of a delusion where it may or may not effect a legal Will is shown when the act of a mental patience in the state hospital excluding his sister from his Will was determined not necessarily the result of a delusion when it appeared that the testator was not aware of all the efforts of his sister on his behalf. In such a situation a blood relationship and the attention bestowed upon the testator by the sister were matters of importance to be considered, but were not of controlling consideration in determining whether the testator was the victim of a delusion. By showing that an elderly testator suddenly and without cause charged a cherished nephew with wrong doing, warranted a finding that the testator’s subsequent Will disinheriting the nephew was invalid as being the result of an insane delusion. A suspicion which has some basis in fact can not be claimed to be an insane delusion. Even unfounded suspicion as against some of the testator’s children would not invalidate a Will from which they were excluded unless it were shown that the suspicions amounted to a delusion and that the Will was a result thereof. The fact that a testator, at the time of the execution of his or her Will, held absurd opinions or peculiar beliefs is insufficient to invalidate a Will when it shows merely that the testator held particular beliefs or opinions not necessarily incompatible with testamentary capacity. The test is whether or not a testator was the victim of delusions which rendered him or her insensible to his or her obligations. Eccentricity alone is not sufficient to defeat a Will. The fact that a testator was eccentric or peculiar, was irascible or ill-tempered, and was slovenly or even filthy in attire, conduct, conversation or personal habits does not establish a lack of testamentary capacity, even when an eccentric Will is the result. A poor state of health does not effect testamentary capacity if sufficient intelligence remains. Old age and its ordinary infirmities are not indicative of testamentary incapacity in the absence of other evidence. Concerning the use of alcohol, when a testator is sober when his Will is executed, even habitual drunkenness, will not defeat his testamentary capacity unless, as a result of long use of intoxicants, his or her mind has been impaired to the extend that testamentary capacity can no longer exist. Concerning the use of drugs, to defeat a Will on the grounds that the testator used drugs, there must be a showing that the testator was under the influence thereof at the time the Will was executed or that the use had destroyed the testator’s ability to comprehend the business at hand. BURDEN OF PROOF: The burden of proof generally is on the person or persons contesting the Will but under certain circumstances the burden may shift to those proposing the validity of the Will. One who brings a testator’s testamentary capacity into question has the burden of proving the lack of testamentary capacity in a positive matter or affirmatively by evidence that is strong, clear and compelling. When the execution of a Will is proved by the attesting witnesses, the burden of showing a lack of testamentary capacity is upon the contestants. The burden generally rest upon a Will contestant who claims a lack of testamentary capacity in connection with undue influence, a confidential relationship, fraud or forgery. In the case of a disproportionately large gift to a stranger, circumstances of the weakness of the testator’s mind, participation of the stranger in the drawing of the Will, and the possibility of undue influence may shift the burden to the proponent to show testamentary capacity and that no improper influence was exercised. This means that the person arguing for the validity of the Will may then have the burden of showing that there was no improper influence. When a person who benefits from a Will had been in a confidential relationship with the testator and that testator was of weakened intellect, the burden shifts to such person to prove the testator’s full testamentary capacity, that the bequest or devise was a free, voluntary and clearly understood act of the testator, and that the bequest or devise was unaffected by undue influence, imposition, deception, or fraud; but if the confidential relationship was not coupled with a weakened intellect, the burden of proof continues on those asserting undue influence. The burden also shifts to the proponents of the Will to establish a lucid interval at the time of the execution of the Will when a testator is shown to have been mentally incapable of executing a Will sometime previous to the execution of the Will in question. When testamentary incapacity has been proved to exist prior to the execution of the Will, the burden is shifted to the proponent of the Will to prove testamentary capacity at the time of the execution of the Will, either by proving a general restoration of mental faculties or that the Will was executed during a lucid interval when the testator was temporarily possessed of sufficient understanding and capacity. Thus an adjudication of incompetency prior to the execution of a Will had the effect of casting upon its proponents the burden of showing capacity at the time the Will was executed. The above information is a beginning to understanding what is involved in contesting the validity of the Will. The are many other factors that may bear on the outcome of an action to invalidate a Will and it should be well understood that it is not an easy task to do so; on the other hand, it is not an impossible task when the circumstances support the finding of some of the above mentioned factors that relate to the testator’s capacity.
Ó 2000 James
W. Pearson, Jr., All Rights Reserved FOR ADDITIONAL INFORMATION CALL THE TOLL FREE HELP LINE 1-800-232-1477 E-mail: lawyer@lawwalk.com JAMES
W. PEARSON, JR. Chair of the Federal & State Credit Union Department & Coordinator of legal consultations under the Family Legal Care Plans offered to credit union members. |
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