Mental Capacity

Often, many of our clients ask how a Will or a gift might be contested by others. One of the main ways is by contesting the testator’s or donor’s mental capacity when the Will was signed or the gift made. The type of capacity needed for each is slightly different.

Wills

As background, a Will is generally valid and sufficient if at the time of making the Will the testator understands:

• the nature, situation, and extent of his or her property;
• his or her relation to those who would naturally have claims to his or her estate;
• the effect of the Will in disposing of his or her property; and
• all of the above and holds these things in his or her mind long enough to form a rational judgment concerning them (i.e, the testator is of “sound mind” and has testamentary capacity).

To assist with determining whether the testator has testamentary capacity, a Will must both be signed by the testator and witnessed by two adult individuals. In Minnesota, for example, this means a Will must be:

• signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction or signed by the testator’s conservator and
• signed by at least two individuals, each of whom sign within a reasonable time after witnessing either the signing of the Will as described above or the testator’s acknowledgment of that signature or acknowledgment of the Will.

Factors to be considered in determining whether a testator possesses testamentary capacity include:

• the reasonableness of the property disposition,
• the testator’s conduct within a reasonable time before and after executing the Will,
• a prior adjudication of the testator’s mental capacity, and
• expert testimony about the testator’s physical and mental condition.

Contestants of a Will have the burden of establishing lack of testamentary capacity, whereas the burden of proof to establish that the testator did have mental capacity rests upon the proponents of a Will.

Gifts

Because an irrevocable gift depletes financial resources that the donor may yet need, the standard for mental capacity to make an irrevocable gift is higher than that for making a Will. This means not only must the donor have the mental capacity necessary to make a Will (again, be of “sound mind”), but the donor must also be  capable of understanding the effect that the gift may have on the future financial security of the donor and of anyone who may be dependent on the donor.

A party seeking to set aside a gift because the donor lacked mental capacity bears the burden of proof and must establish the donor’s lack of capacity by clear and convincing evidence.