If you recently lost a family member or loved one and you are concerned about the Last Will and Testament that has been introduced for probate, one option is to initiate a Will contest. In the State of New York, you must allege (and eventually prove to be successful) legal grounds on which the Will could be declared invalid. One of the most frequently used grounds is “incapacitation,” more commonly referred to as “lack of testamentary capacity.” How do you prove that the Testator lacked the necessary capacity to execute his/her Will? Litigating a Will contest often involved complex legal arguments and confusing facts which is why you should always consult with an experienced attorney before moving forward. In the meantime, however, the Harrison estate planning attorneys at the Law Offices of Kobrick & Moccia offer some basic information about how to prove lack of testamentary capacity in a Will contest.
Grounds on Which a Will Could Be Invalidated
One of the preliminary considerations when challenging a Will is which grounds to use. Simply being unhappy with your inheritance (or lack thereof) under the terms of a Will does not legally justify initiating a Will contest. For the court to entertain a Will contest, the contestant must allege one of the legal grounds on which a Will may be declared invalid in the State of New York including:
- Undue Execution — The Will was not properly executed.
- Revocation — The Will was revoked by the Testator.
- Incapacitation — The Testator lacked testamentary capacity to execute a Last Will and Testament.
- Fraud — The Testator was induced by fraud in making or executing the Will.
- Undue Influence — Undue influence was exerted upon the Testator in the making or executing the Will.
What Is Testamentary Capacity?
If you choose to challenge the validity of the Will, you will have the burden of proving the grounds which you allege. To prove that a Testator lacked testamentary capacity, you need a clear understanding of what is required to have testamentary capacity. Judges, attorneys, and scholars alike have tried to find a universally acceptable definition for testamentary capacity, to no avail. All agree, however, that the capacity needed to execute a Will is far less than that needed to enter into a contract or that required in other areas of the law. One New York County Surrogate’s Court recently described testamentary capacity as “the lowest acceptable level of cognitive ability required by law.” In other words, a Testator did not need to be “sharp as a tack” when he/she executed the Will.
Proving Lack of Testamentary Capacity
Typically, the Probate Court presiding over a Will contest will consider several things when deciding if a Testator had the requisite capacity, including:
- Whether the Testator understood the nature and consequences of executing a Will
- Whether the Testator knew the nature and extent of the property they passed via their Will
- Whether the Testator knew the person to whom they were passing their property;
- The relationship between the Testator and the person who received the property.
Another important aspect of determining testamentary capacity is that capacity, or lack of capacity, is measured at the time that the Will is executed. A Testator could have suffered bouts of dementia for weeks, even months, leading up to the execution of the Will; however, if the Testator was lucid and was experiencing a period of clarity at the time the Will was executed, the court would likely find that capacity existed.
For a contestant, this means that while medical records showing dementia, or other serious illness, may indeed be helpful, they will likely not be sufficient. Proving lack of capacity requires more immediate evidence, such as credible witnesses that knew the Testator well enough to testify that he/she lacked capacity at the time the Will was executed.
Contact Harrison Estate Planning Lawyers
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns regarding a New York Will contest in general, or proving lack of testator capacity specifically, contact the Harrison estate planning lawyers at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.