Next to undue influence, lack of capacity is the second most common ground for setting aside a will. The legal standard for testamentary capacity is that a testator has testamentary capacity if, at the time of the making of a will, he/she:
“Knew the natural objects of his/her bounty” means that the testator is aware of his/her immediate circle of family, friends, and associates.
“The nature and extent of his/her property” means that the testator must be able to recall what he/she owns.
“Ability to form a rational plan,” unlike the former two, deals directly with impaired ego functioning. If the testator is something less than a functionally well-adjusted adult, he/she may not be able to make a will because he/she lacks the ability to make rational plans about using property after death. If so, then this element is critical to determine when someone has testamentary capacity to make a will. The ability to form a rational plan really means the ability to choose socially acceptable motivation to achieve self-actualization through the making of a Will. This criterion is really a question of determining motivation for making a will. If a testator is unable to relate to reality, then the testator’s reality principle, his/her ego, is impaired. The testator’s motive for acting then reverts to an unacceptable primitive level, and the testator has no “rational plan” for will making.
The most recent significant case in Washington dealing with lack of mental capacity is Estate of Eubank, 50 Wn. App. 611 (1988). There, the Court opined, “The test for testamentary capacity was stated by the Washington Supreme Court in Estate of Bottger, 14 Wn.2d 676, 685 (1942) as follows:
[A] person is possessed of testamentary capacity if at the time he assumes to execute a will, he has sufficient mind and memory:
- To understand the transaction in which he is then engaged,
- To comprehend generally the nature and extent of his property which constitutes his estate and which he is contemplating disposing, and
- To recollect the objects of his bounty. …
Evidence challenging testamentary capacity usually consists of medical testimony, testimony of attesting witnesses, and testimony of other lay witnesses. [Citation omitted.]
With respect to medical testimony, it has been held that special consideration should be given to the opinion of the attending physician. Estate of Reilly, 78 Wn.2d 623 (1970); [Citation omitted]. Although medical testimony and the testimony of attesting witnesses are more commonly given, any testimony that is credible, internally consistent, and supported by other similar evidence is admissible to determine testamentary capacity [Citation omitted]. At page 618.
Representative Washington cases:
Reilly, 78 Wn.2d 623 (1970).
Mitchell
Representative Washington cases:
Consequently, the will of a senile testator will probably be probated, despite his/her being incompetent to manage his/her own affairs or to make a simple contract.
Representative Washington case:
Representative Washington case:
Courts have a difficult time with nonorganic mental illness, and the results of these cases are bizarre. According to Ross & Reed, the chances for the will of these testators being probated after appellate review are:
These mental conditions generally get lumped under what is known as the “Insane Delusion” rule.
The law has simply not kept up with medical art. The law on capacity begin with the notion that “idiots and persons of non-sane memory” should not be making wills. This general statement, elaborated by the testamentary capacity rule, may at one time have adequately handled organically impaired testators so long as making a will was thought to be be as meaningful as making a simple contract. However, it never really dealt with mental disorders in which the testator’s memory was not impaired. Courts could find that a will was valid if the testator in a criminal case could have been found to be mentally unable to form criminal intent. This did not set will with Courts, since a testator who could not tell right from wrong could still have capacity to make a will. In order to cover the problem of the testator who had testamentary capacity but who nonetheless was unqualifiedly crazy, Courts invented the notion of “insane delusion.”
Judges have concocted a number of explanations for insane delusion:
These explanations contain the following common elements. The testator:
The cases generally play out in one of two ways:
These people are probably not psychotic and may not even be mentally ill, just far off the continuum of maintaining socially acceptable beliefs.
As you might suspect, insane delusions cases are infrequent. The most recent significant insane delusion case is Estate of Meagher, 60 Wn.2d 691 (1962). There, the Court opined, quoting from other cases:
It is not a question whether the testator has general testamentary capacity, for many persons laboring under insane delusions may be competent to make a Will [Citation omitted], but whether the insane delusions under which the testator suffered materially affected the will he made. In other words, is it reasonably certain that but for the insane delusions, [the contesting beneficiary] would have received a materially larger [distribution from the estate]? At page 692.
A more significant insane delusions case (which invalidated the testator’s Will on the basis of insane delusions, unlike the foregoing case) is Estate of Gwinn, 36 Wn.2d 583 (1950). There, the Court opined:
[A] delusion which induces a testator to make his will, but which does not affect the provisions of such will, does not render it invalid. However, if the insane delusion is of such a character and operates in such a manner that by reason thereof, the testator disinherits a natural object of his bounty, such as one of his children, which he would not have done had he not been laboring under such insane delusion, then the testator is regarded as one not having capacity to make a will, and a will so made is not valid. At page 586.An insane delusion is a false belief that a person of sound mind in similar circumstances would not hold and from which one cannot be dissuaded by any evidence or argument, and that materially affects the disposition of the estate.
Representative Washington cases:
Commitment to a mental institution or appointment of a guardian:
The Courts have universally held that the time to determine whether a testator had testamentary capacity is the date of execution of the testator’s will. Courts will admit evidence on the testator’s state of mind within a reasonable period before or after the execution of the will, but they are adamant in the respect they give to the actual moment of execution. In some jurisdictions, attesting witnesses are entitled to greater creditability than other witnesses on the issue of testamentary capacity because the former were present at the moment when the testator signed the will.
Over the centuries, Courts have adopted the rule that every person is presumed sane, shifting the burden of proof of lack of sanity to its challenger. This presumption is ubiquitous in will contests. Usually, the Courts go even further and:
The judicial treatment of evidence of lack of mental capacity is treated similarly to that of presumption of capacity. For example, when Courts are faced with the Testator’s having been placed under a guardianship at or near the time of will execution, they state that the testator’s having been judicially determined to be incompetent and a guardian having been appointed does not mean that the testator necessarily lacked testamentary capacity.
Courts often state that unrebutted evidence of great age, physical illness, memory loss, regressive behavior, personal untidiness, or peculiar behavior is insufficient evidence to demonstrate lack of testamentary capacity. In effect, the Courts are stating that the presumption of mental capacity established by due execution is not overturned by proof of advancing senility unless the evidence of senility is overwhelming.
The presumption of capacity that arises upon proof of due execution also assists the proponent of the will in carrying forward the burden of proof on the issue of testamentary capacity after the burden of persuasion has been shifted to the contestant to disprove capacity. For the majority of Courts, the presumption survives contrary evidence and may be used by the trier of fact to evaluate contrary evidence.
Representative Washington cases:
The allocation of burden of proof in will contests based on testamentary capacity is a crazy quilt of apparently conflicting and confusing maxims and principals which vary from state to state in an astounding variety of verbal formulae. Courts assign such burden of proof in three distinct systems:
Representative Washington cases:
Most will contests challenging the testator’s capacity fail. The will contest that succeeds, when undue influence is not a factor, does so because the contestant can demonstrate the testator’s manifestly irrationally behavior at or about the time of execution of the will. If this behavior is directed at an heir of the testator, Courts will act. The kind of will contest most likely to succeed is one closely modeled on the insane delusion rule involving a delusional structure on the testator’s part regarding a spouse or child.
Part of the reason for the low success rate of will contests is the formidable handicaps established by the Courts. The states most unfavorable to will contests, such as Washington, not only place the burden of proving lack of mental capacity on the contestant but also require the contestant to prove lack of mental capacity by clear and convincing evidence. However, when undue influence becomes an issue in a will contest, the proponents lose some of their judicial favoritism, and the contestants have some practical help from the system of presumptions and burden of proof.