January 1, 2017
Estate planning documents can lead to all sorts of issues among those left behind.
Occasionally, somebody isn’t happy with what they received according to the will or trust that the deceased created prior to their death. And some folks just want to cause issues with family members they don’t deem worthy of the assets they are receiving.
This usually leads to that upset person challenging the will or trust in court, and the main mode of attack is to say that the person didn’t have the capacity to execute the documents. The law states that a will executed without said capacity isn’t valid.
So what is capacity?
In short, it means that the person who created and signed the documents knew what they were doing. In layman’s terms, it means that they were “with it.”
When the courts determine if the testator (the person whose will is in question) had capacity, it will look at four questions:
- Was the testator 18 years of age or older?
- Did the testator understand the extent of his or her assets?
- Did the testator know the objects of his or her affection?
- Did the testator understand to whom he or she was leaving said assets?
The first question is answered pretty easily, so lets move on to the extent of his or her assets. This basically means the testator must have known what all was included in his or her estate. Often times, this includes a house, a car, any bank or pension accounts, and any other property (household items, tools, etc.).
Next, the court will ensure that the testator know the “objects of his or her affection.” No, this doesn’t mean the cherry 1970 Mustang Dad kept in the garage. That falls under the above category. This question is concerned with knowing who your relatives and close friends are. Most folks who lack capacity no longer understand who the important people in their lives are.
Lastly, the testator needs to understand the contents of the will. He or she needs to understand what they are giving to whom. That’s it.
It’s important to note that just because a person has been diagnosed with a mental disorder does not mean that person lacks capacity. These folks can have a moment of clarity and articulate to the notary and/or attorney all of the requirements listed above and be found of sound enough mind to execute the documents. The same theory holds true for drug addicts.
Opponents of a will may also allege undue influence. While it would take another writing to fully fill you in on the subject, the basic premise is that someone held prohibitive sway over the testator to the point that he or she affected the contents of the will.
If you need to set up an estate plan or are dealing with a probate case, call the attorneys of King Law at 1-888-748-KING to schedule your consultation today. We have extensive experience in this sector and will work hard to address your needs.