March 4th, 2009
The requirements for testamentary capacity are minimal. Some courts have held that a person who lacks the capacity to make a contract can still make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of:
• The extent and value of their property
• The persons who are the natural beneficiaries
• The disposition he is making
• How these elements relate to form an orderly plan of distribution of property.
The legal test implies that a typical claimant in a will contest is a disgruntled heir who believe he should have received a larger share than what he received under the will. Once the challenging party meets the burden of proof that the testator did not possess the capacity, the burden subsequently shifts to the party propounding the will to show by clear and convincing evidence that the testator did have the requisite capacity.
Duress or coercion (as a term of jurisprudence) is a possible legal basis to set aside or otherwise modify a will, in that, the execution of the will by the Testator/Testatrix arises out of an immediate fear of injury. Black’s Law Dictionary (6th ed.) defines duress as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would].”
To establish duress, four requirements must be met:
• Threat must be of serious bodily harm or death
• Harm threatened must be greater than the harm caused by the crime
• Threat must be immediate and inescapable
• The defendant must have become involved in the situation through no fault of his or her own
A person may also raise duress when force or violence is used to compel him to enter into a contract, or to discharge one.
Depending on the grounds, the result may be:
• Invalidity of the entire Last Will and Testament, resulting in an intestacy.
• Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres
• Dimunition of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.
The Nacol Law Firm PC
990 South Sherman Street
Richardson, Texas 75081
Metro: 972-690-3333
Toll Free: 866-352-5240
Fax: 972-690-9901
www.NacolLawFirm.com
Tags: civil trial attorney, civil trial lawyer, coercion, contesting a will, dallas attorney, dallas divorce lawyer, dallas lawyer, disposing mind and memory, duress, elective share, equitable doctrine, last will and testament, nacol law firm, natural beneficiaries, orphaned children, testamentary capacity, testator, undue influence, validity of a will, widowed spouse, will contest
Posted in Probate and Will Contests | No Comments »
February 24th, 2009
Typically, standing to contest the validity of a Will is limited to two classes of persons:
1) a person who is named on the face of the Will (i.e. any beneficiary); and 2) a person who would inherit from the testator if the Will was invalid.
The most common grounds, or reasons, for contesting a Will are:
- Undue influence – is an equitable doctrine, which involves one person taking advantage of a position of power over another person. In such cases, free will to bargain is not possible.
- Duress
- Election against the Will by a widowed spouse or orphaned children
- Fraud – a deception made for personal gain or to damage another individual
- Insane delusion
- Testamentary capacity (same as a lack of disposing mind and memory) – in the common law tradition, testamentary capacity is the legal term used to describe a person’s legal and mental ability to make a valid Will. This concept has also been called sound mind and memory.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.
Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions.
Tags: contesting a will, disposing mind and memory, equitable doctrine, insane dilusion, orphaned children, testamentary capacity, undue influence, validate will, validity of a will, widowed spouse, will contest
Posted in Probate and Will Contests | No Comments »
Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.
