It is not uncommon that a Will may be executed by a decedent either relatively close to the time they pass away, or even immediately prior to their passing. If a dispute arises as to the validity of a Will under these circumstances, one of the grounds for attack would be that the decedent lacked the required capacity to execute the Will on the date that it was signed. If a party is able to prove that the decedent lacked the capacity to execute a Will on the date that the Will was executed, the Court will invalidate it. The following paragraph explains what the necessary capacity is to execute a Will.

The capacity to execute a Will is different from a finding of competency. In general, the capacity to execute a Will is a fairly low bar to hurdle. At the time the Testator executes the Will, they must understand that they posses certain items, and moreover, they must understand to whom they wish to convey the specific items. The Testator need not understand all of the legal intricacies of the execution of the Will, but instead, need only understand that he or she has certain property which he or she wishes to convey and to whom he or she wishes to convey the property. At the same time, there must also be an understanding by the decedent that he or she was specifically aware as to the property which he or she possessed. In other words, if the decedent thinks that they are only conveying one dollar, but instead, they are transferring one million dollars a challenge to the Will may be successful. On the other hand, the proponent of the Will need not prove that the decedent would pass a competency test in order for the Will to be valid. Instead, the minimal standard cited above need only be met.

In determining whether a decedent had the requisite capacity to execute a Will, medical records often come into play which might evidence the physical and mental health of the decedent at the time the Will was drafted and executed. Equally important, however, is testimony from witnesses who made direct observations of the decedent at this same point in time. In general, it is a combination of both witness testimony and medical records which are relevant in determining whether the decedent had the capacity on the date the Last Will and Testament was executed.

When seeking to invalidate a Will based upon the lack of capacity, or to support it based upon an allegation that the decedent possessed capacity, it is important that the parties consider all medical evidence, all witness testimony, the nature of the bequest, and whether the decedent had an understanding as to the property that he or she possessed and a corresponding Estate Plan which appears rational in nature. As such, should a party be faced with defending a Will based upon an allegation of lack of capacity or seek to invalidate one, it is suggested that this party consult with an attorney to properly prepare the defense or the prosecution of the case. The attorneys at Stark & Stark are well versed in this area and can guide you through this difficult process.