Will contest – lacking testamentary capacity

Following up on our earlier blogs about will contests in Alabama, I have received several emails asking “What does it mean to lack testamentary capacity?”

In Alabama, lacking testamentary capacity means that a person does not possess the mental ability to make a valid will. To have testamentary capacity, a person must meet the following criteria at the time the will is executed:

1. Understand the Nature of the Act: The person must understand that they are creating a will and what it means.
2. Know the Nature and Extent of Their Property: The person must have a general understanding of the property they own and what they are distributing through the will.
3. Know the Natural Objects of Their Bounty: The person must recognize the individuals (e.g., family members, friends) who would normally be expected to inherit from them.
4. Be Capable of Making a Rational Plan: The person must be able to formulate and communicate a plan for distributing their assets.

If a person lacks testamentary capacity when they create or sign a will, that will may be invalidated. Here are some examples:

Examples Affecting Validity of a Will

Cognitive Impairment:

A person with advanced dementia might not understand the extent of their assets or recognize close family members. If a will is executed under such circumstances, it may be challenged and invalidated.

Mental Illness:

If someone is experiencing a delusional episode or severe mental illness that impairs their judgment, such as believing they are under undue influence when they are not, their will could be deemed invalid.

Under Influence of Intoxication:

If a person was intoxicated by alcohol or drugs at the time of signing their will, rendering them incapable of understanding what they were doing, the will may not be enforceable.

Undue Influence:

• If someone is coerced into signing a will while in a vulnerable mental state, this could call the person’s testamentary capacity into question.

Sudden Illness or Trauma:

• A person who is gravely ill or disoriented due to trauma may lack the awareness needed to create a valid will.

If someone believes a testator lacked testamentary capacity, they can contest the will in probate court. Evidence might include:

• Medical records demonstrating cognitive decline.
• Testimony from witnesses to the will signing.
• Statements from doctors or mental health professionals.
• Evidence of undue influence or coercion.

What can be done to prevent this from happening?

To reduce the likelihood of disputes, it’s common to:

Have a doctor assess the person’s mental state before drafting a will.

Use an attorney to oversee the process and document the person’s capacity.

Have neutral witnesses present during the signing of the will.

If possible, conduct a recording of the testator before he signs the will where he discusses current events, who is receiving his estate, and maybe even provide an explanation.

This ensures the person’s intent is clear and less likely to be contested later.

In the event these preventive measures aren’t taken, it is recommended that you speak with an attorney who has experience with will contests.  Burns, Cunningham & Mackey have experience filing will contests and protecting a family’s rights when someone is probating a will of someone who clearly lacked testamentary capacity.