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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. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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