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  • Writer's pictureKathryn Bruns, CPA

Testamentary Capacity

One of the services that Personal Affairs Stewardship offers is "Executor Services". To be clear, I am not a lawyer and accordingly I do not provide legal services. We CAN assist you in thinking through the ramifications to your executor and other family members when having a will made. I have been in the tax business for years where I have been trained to read and interpret tax law to try to predict what would happen if a tax issue was taken to court. Accordingly, I am also able to read and interpret ALL types of law in general to meet the same end goal. Part of the process is to review cases that have been decided by judges in how THEY read, interpret and apply the laws.

When it comes to being a named executor for a family member, the job can become very difficult to carry out. Unless the deceased's will is very straightforward (for example, it equally divides the estate between the deceased's children) family problems can begin and can quickly escalate. Someone that feels they were unfairly left out of a will or in some other way was unfairly slighted, may feel compelled to contest the will. Generally speaking, there are 4 main areas where a contested will could have a basis. These are:

1. Improper signature issues

2. Testator (will maker) was unduly influenced

3. Testator (will maker) was tricked in some way (fraud)

4. Testator (will maker) lacked "testamentary capacity" in making the will

All of these have large hurdles to cross in order to prove, but I would like to focus on the 4th area a little more, since it is a very interesting topic to me. First, let's start with the definition:

Testamentary capacity: having the mental competency to execute a will at the time the will was signed and witnessed.

As you can imagine, what would constitute "mental competency" could be highly subjective. So let's add another definition, namely, what is mental INcompetency (the opposite):

Mental incompetency: A person who is diagnosed as being mentally ill, senile, or suffering from some other disability that prevents them from managing his own affairs.

What happens if a mentally incompetent person was never diagnosed and now since they are deceased, they never can be ? I want to reference the following case which dealt with this and is the case that is still being looked to for precedent in such matters:

In Banks v. Goodfellow, the focus was on the testator (will maker) who was accused of suffering from delusions. As stated above, it will be difficult for a judge to rule that a will is invalid due to the testator being delusional (and thus was not mentally competent). However, a disgruntled family member may be so emotionally distraught at being slighted, that they may not rationally think about the odds of winning. Let's look at yet another definition:

Delusion: A belief or impression that is firmly maintained despite being contradicted by what is generally accepted as reality or rational argument, typically a symptom of mental disorder.

How in the world can someone prove this? Is pathological lying indicative of being delusional? This has been the subject of controversy since no one can get in the head of a pathological liar. It isn't known for sure if they KNOW they are lying or if they are delusional. One would hope the latter, because the former is quite scary. Anyway, another definition:

Pathological lying: Falsification entirely disproportionate to any discernible end in view, may be extensive and very complicated, and may manifest over a period of years or even a lifetime.

If two or more family members lived with the now deceased for many years and can corroborate on many, many instances of the pathological lying of the deceased, would this sway a judge?

The moral of the story here is that a will maker should be very careful if he/she decides to deviate from what an objective person would view as normal will content. This is especially risky if your reasons for deviating from the norm have anything to do with the intent to punish, and the ones you are punishing have a basis to accuse you of lacking testamentary capacity. The estate will incur legal fees for defense, and the executor will be in the position to be involved in a very difficult family battle. Ugly topics will come up and be scrutinized and dissected. Please think very carefully when drafting a will. We can help you think through the pros and cons of having your particular wishes carried out before you hire your lawyer to actually craft the documents. Also, if you are an executor that finds yourself in a difficult family situation as a result of your executor role, we can help. There are many things we can do to help you before or instead of getting a lawyer involved (and they have much higher rates).

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