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Edward Thomas: Tips on determining testamentary capacity

September 11, 2013
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Indiana Lawyer Focus

By Edward D. Thomas
 

thomas-edward Thomas

The requirements for making a will in Indiana are two-fold: The individual must be (1) of sound mind, and (2) 18 years of age or older. Ind. Code § 29-1-5-1. In actions to contest and set aside the probate of a will, the grounds usually asserted are some combination of unsoundness of mind, fraud, duress, undue influence or that the will was unduly executed. See Ind. Code § 29-1-7-17. One of the more difficult challenges in a will contest is establishing that the testator lacked testamentary capacity. In general, a will executed while the testator is of unsound mind is invalid. However, contrary to popular belief, factors such as old age, physical failings or even failing memory alone are insufficient to establish a lack of testamentary capacity.

Indiana courts presume that every person is of sound mind to execute a will until the contrary is shown. Gast v. Hall, 858 N.E.2d 154, 165 (Ind. App. 2006). To rebut this presumption, a party must show that the testator lacks mental capacity at the time of executing his will to know: (1) the extent and value of his property; (2) those who are the natural objects of his bounty; and (3) their deserts, with respect to their treatment of and conduct toward him. Hays v. Harmon, 809 N.E.2d 460, 464 (Ind. Ct. App. 2004), trans denied.

The key to successfully challenging a will essentially focuses on a two-part inquiry. First, unsoundness of mind sufficient to render a will invalid must exist at the time of the execution of the will. See Deery v. Hall, 175 N.E.141 (Ind. App. 1931). Second, it must be established that the unsoundness of mind impacted the testator’s ability to know his property and know to whom he wishes to devise this property. Thus, to be incapable of executing a will because of unsoundness of mind, a person must have such a degree of mental unsoundness that he or she does not reach the standard of competency generally recognized by law.

While the law does not seek to define the exact quality of mind and memory a testator must possess to authorize him or her to make a will, it does require the testator to know and understand the business in which he or she is engaged, the extent of his or her estate, and the persons who would be the natural objects of his or her bounty. Indiana courts simply require the testator to be able to keep these in mind long enough to form a rational judgment in relation to them. Kaiser v. Happel, 36 N.E.2d 784 (Ind. 1941).

The capacity to make a will is not measured by the testator’s actual knowledge or understanding of the extent and nature of the property devised, but by his or her capacity to understand the extent of his or her estate and the objects of his or her bounty. While a total loss of memory, or the fact that it has become seriously impaired, may render a person incompetent to make a will, not every slight or partial loss of memory will do so. Whiteman v. Whiteman, 53 N.E. 225 (Ind. 1899).

On the issue of testamentary capacity, evidence of the testator’s appearance, conduct, statements, declarations or conversations, both before and after the execution of the will, may be admissible if it is material and occurred in close proximity to the execution of the will. This type of evidence is admissible solely for the purpose of establishing the condition of the testator’s mind, but not as proof of the truth of the facts stated. The exact time which may be covered by the period before or after the testamentary act to show the testator’s mental condition when making the will lies within the sound discretion of the trial court. Thus, the issue of admissibility of evidence is critical to this determination.

Generally, competent evidence of every fact which sheds light on the issue of testamentary capacity is admissible. On the other hand, incompetent, irrelevant or immaterial evidence is generally held inadmissible. Although a testator’s capacity to make a will is to be determined by his or her condition at the time of its execution, evidence of the testator’s mental condition either before or after execution may, depending on the circumstances of each case, be material and admissible. Griffith v. Thrall, 29 N.E.2d 345 (Ind. App. 1940). However, this is true only for the purpose of showing the condition of the testator’s mind at the time the will was executed. Estate of Verdi ex rel. Verdi v. Toland, 733 N.E.2d 25 (Ind. Ct. App. 2000). Where it is established, however, that at the specific time of the execution of the will the testator was mentally sound, his or her mental condition at some other time is of no consequence. Peters v. Knight, 8 N.E.2d 401 (Ind. App. 1937).

Indiana courts have specifically admitted evidence as to various matters on the issue of testamentary capacity, such as: (1) hereditary insanity among the testator’s relatives; (2) testator’s insane delusions and peculiar beliefs or opinions; (3) testator’s physical condition; (4) statements in the testator’s will that he had advanced specific sums to named persons were erroneous; (5) testator’s habits and reputation; and (6) the reasonableness of the provisions of a will.

When testamentary capacity is an issue, or if there is a concern that there may be a challenge based on capacity in the future, it is appropriate for the estate planning attorney to ask a series of questions of the testator before execution of the will. These questions should elicit the testator’s knowledge of the extent of their estate, including the names a nd ages of heirs and beneficiaries. The attorney should also discuss the effects of the will and ensure the testator generally understands the effects of signing the testamentary document. While there is no guarantee that one’s will cannot be successfully challenged, following these suggestions will aid the testator’s personal representative and attorney to defend a subsequent will contest.

Edward D. Thomas (ethomas@lewiswagner.com) is an attorney at Lewis Wagner LLP in Indianapolis, Indiana. He devotes a portion of his practice to representing individuals, executors and trustees when disputes arise in the settlement of estates and the administration of trusts. Opinions expressed are those of the author.

 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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