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After a person dies, there can be many disagreements among the heirs and beneficiaries over the Will or Trust of a decedent. Two of the most common issues raised are: 1) whether the decedent had “testamentary capacity” when they signed a document; and 2) whether they were acting of their own free will or under the “undue influence” of another person.  If either lack of capacity or undue influence is established by clear and convincing evidence, the Will or Trust signed is void.

What is testamentary capacity?

Testamentary capacity is present if a person knows and understands 1) the nature, situation and extent of their property; 2) the claims of others (primarily family and heirs) on their bounty; and 3) are able to hold these things in their mind long enough to form a rational judgment concerning them. The mental capacity required for a Will or Trust is far less than is necessary to enter into a contract. A Will executed during a “lucid interval,” when the person possessed testamentary capacity while making the decisions, is valid.

What is undue influence?

Undue influence occurs when a person asserts influence over the person signing the Will or Trust that overrides their free will and causes them to make a bequest they would not otherwise have made. The third person overmasters the will power of the signor or in fact wrongfully influences by becoming dominant and controls the signor’s mind.

Lack of testamentary capacity and being subject to the undue influence of another person are two distinct concepts. But they are commonly asserted in tandem and the claim made that a document signed is void for both reasons. The case law is not always clear on whether both can occur simultaneously in the same person. Can a person who lacks testamentary capacity be subject to undue influence? Stated another way, without proof that a person is competent and has testamentary capacity, is undue influence possible?

After a person dies, attorneys for heirs and beneficiaries regularly review and analyze both the mental capacity and the influences by other persons on the decedent when Wills and Trusts were prepared and signed. If a challenge is going to be made there should be thought given to whether both issues should be raised, and if so, whether the evidence and the law can support both occurring simultaneously. Also, the burden of proof – by clear and convincing evidence – must be weighed when making any decisions regarding either testamentary capacity and undue influence.

Attorneys involved in estate planning and their clients must also be aware of and consider both testamentary capacity and undue influence when preparing and signing Wills and Trusts.

For more information on this issue or to discuss a specific situation, contact Keith Broady at kbroady@lommen.com / 612.336.9346 or Bryan Feldhaus at bryan@lommen.com / 612.336.4389. Both Keith Broady and Bryan Feldhaus litigate such matters.