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Dispute a Will/Trust on Grounds of Mental Incapacity

Determining Testamentary Capacity

One of the most common reasons for a Will to be contested is on grounds of alleged mental incapacity. In order for a Will to be executed the testator must be of testamentary capacity or "sound mind." Anyone who is over the age of 18 is presumed to have the capacity to execute their own Will, but if there is adequate evidence to state otherwise, then the Will may be revoked. Mental capacity usually comes into question when the testator is of old age and is either senile, has dementia or is actually clinically insane. There are also other reasons a person can be declared to be not of sound mind. Testamentary capacity only matters in relation to making a Will or altering a Will. As long as the testator was of sound mind at the time the Will was executed or altered, then the Will can be considered valid.

Overall, there are about four requirements that must be met in order to prove that the testator was of sound mind and testamentary capacity at the time of Will execution:

1. Testator must have known both the extent and value of their property

2. Testator must have been aware of their natural beneficiaries

3. Testator must have been aware of the disposition being made

4. Testator must have known how the former elements related to form a plan of property distribution

Those who wish to contest or challenge a Will or trust have the burden of proof to show that the testator was not of sound mental ability. If the contesting party is able to prove that the testator did not meet any of the previously mentioned requirements, then the burden of proof will shift to those advocating the Will. Those advocating the Will will then have to come up with the evidence to prove that the testator did meet the above requirements. Due to the complex nature of these issues, there is a high likelihood that you may have to appear in court.

Evidence to Disprove "Sound Mind"

Those who wish to contest a Will on these grounds must be able to show with clear evidence that the testator was mentally unsound. There are a few ways that this might be possible, but procuring the evidence may be more difficult in the case of "dead man's statutes." This is a law that is designed to prohibit testimony against a deceased person as it involved the deceased's estate. These restrictions on evidence are not permanent, but can be waived in some instances. It may also be difficult to contest a Will on grounds of mental incapacity if the execution of the Will was filmed by the testator's attorney. There are other ways to obtain evidence about the mental state of the testator at the time of the execution of the Will such as forensic specialists stepping in.

It is important to remember that testamentary capacity is not always the same as clinical/medical soundness of mind. For example, an individual may be deemed "rational" by doctors and psychologists while simultaneously having a skewed perception (aka "insane delusion") of some subjects. Conversely, someone who seems unsound of mind may actually just have peculiar habits are eccentric or infirm. Our firm can work to prove that the testator's dementia, delirium or other mental illness was serious enough to affect their capacity to execute a Will. It often takes intense investigations to successfully prove a lack of testamentary capacity both in and outside of court. Domina Law Firm has what it takes to successfully contest Wills and trusts. To learn if you qualify, contact our firm today!

Domina Law Group pc llo
Located at 2425 South 144th Street, Omaha, NE 68144.
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attorney website marketingDomina Law Group handles will and trust contest cases in all states except Iowa, South Dakota, Minnesota, Missouri, and North Dakota. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.