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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. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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