As the population ages, we are experiencing an increased frequency of cases where it is alleged that the testator lacked sufficient mental capacity to make a Will.  Generally, the standard for mental capacity is very low and will be met if the testator can comprehend the extent of his assets, who his heirs are, that the Will is meant to dispose of his assets at death and also understands the actual distribution under the Will.  Although there is a presumption that a testator is of sound mind and competent when he executes a Will, a claim may be pursued based on lack of testamentary capacity if any these factors are absent, or in the event that the testator suffers from a mental illness such as dementia.  In order for a challenge to be successful, an expert will need to be retained to testify that the testator lacked capacity based on a medical condition and a review of the medical records.  Witnesses to the execution of the Will and the attorney draftsperson also become key witnesses in the litigation.

Many times, it is left up to the attorney draftsman as to whether capacity exists, and whether additional precautions should be taken in preparing a Will for an elderly person.  Sometimes, the proper precautions are not taken and an attack based on lack of capacity may be asserted.  Before a Will contest is filed, these issues must be evaluated with an attorney in light of the underlying facts and the anticipated outcome.

Recent Cases:

Will Contest – Lack of Capacity and Undue Influence

In the Matter of the Estate of Vivian Fassett, 2012 N.J. Super. Unpub. ____ (Docket No.: A-3310-10T3) (App. Div. 2012). On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County. Before Judges Cuff and Waugh.

Plaintiff appeals from the Chancery Division’s denial of his application seeking to set aside the Last Will and Testament of his sister claiming that she lacked the requisite testamentary capacity and in the alternative, her Will was the product of undue influence.

On his lack of capacity claim, Plaintiff failed to introduce competent medical testimony to support his lack of capacity claim and therefore it was denied. Plaintiff had the burden of proof to overcome the presumption of capacity, which he failed to do. The fact that Decedent passed away within 30 days of executing her Will was certainly not dispositive without additional evidence. Plaintiff had the obligation to produce competent evidence that his sister did not comprehend the nature and scope of her assets, the identity of the persons to receive these assets, the fact that she was executing a will, and that the document would distribute those assets to the persons she had identified as her beneficiaries. Plaintiff failed to carry his burden. Instead, he only submitted unauthenticated documents and information about his sister’s condition at various points in time, which were not dispositive or admissible.

Plaintiff also failed to carry his burden on the issue of undue influence. He failed to establish undue influence by anyone, let alone require a shift of the burden of proof to the proponents of the Will. The parties appeared for a hearing before the Chancery Division, twice, and the Judge’s credibility determinations were entitled to great weight because he had an opportunity to see and hear the witnesses and form an opinion about the credibility of their testimony.

Affirmed.