Just because a Will may be unfair to different members of a family its lack of perceived fairness does not invalidate the Will in the absence of additional evidence.  It is well settled that if the testator has the capacity to execute a Will, then in that event, it is not the duty of the Court to rewrite the Will, but instead, to enforce it in its current format.  The test of capacity to execute a Will is quite a low standard.  In general, the testator need only understand the property which he possesses and which he wishes to dispose of and the individuals to whom he wishes to bequeath this property.  Provided the testator meets this simple two pronged test, and the distribution is not the subject of an outside influence which is unlawful in nature, then the bequest will stand.  This might be despite the fact that the decedent’s bequest may be extremely unfair to other potential heirs of the Estate.

Often times, a party may seek counsel due to a Will which they feel is unfair or improper.  Usually, this occurs when a change is made in the Will not long prior to the death of the decedent.  Unfortunately, the minimal test of capacity allows the decedent to execute a Will which may drastically differ from his or her previous wishes and one which the Court will uphold if the testator possesses the capacity on the date it was executed.  There are other ways to challenge a Will based upon allegations of undue influence which thereby caused the decedent to execute a Will which was not in accord of his true intentions, but instead, reflects the wishes of another person who has benefitted by same. The test of undue influence, however, is entirely separate and distinct from capacity to execute a Will.

With regard to capacity, if the Court finds that there is sufficient capacity and there is no evidence of any other improper influence, the Will will be enforced in its present format no matter how unfair it may be to the other members of the decedent’s family.  As such, simply because a Will is unfair does not mean that it is invalid.  Obviously, if a party encounters a Will which is grossly unfair and was created not long prior to the death of the testator, then in that event, this individual can consult with an attorney to see whether there are ways to attack the validity of the Will based upon either an allegation of lack of capacity or undue influence.