What You Should Know About Will Contests and Mental Capacity

By E. Jennifer Reale

AdobeStock_208851607-300x212Contesting a Will or other transfers on the grounds that the person signing the Will lacked the capacity to do so, is both difficult and emotional. But it’s something that comes up quite frequently in my practice.

In Connecticut there are two different standards to determine capacity:

1. When the property is transferred upon the death of the grantor
These transfers are typically accomplished through a Will or a trust, but it can also happen through a life insurance policy, annuity or bank account beneficiary designation.

For someone’s Last Will and Testament to be valid, the person signing the Will (called the testator) had to have capacity to do so. In Connecticut, there is a presumption that the person signing a legal document has capacity. The testator needs to know who her family members are, understand the nature of her property, and understand what she was doing when signing the Will.

The testator does not have to have the ability to manage his or her finances. For example, a person who is conserved may still have the capacity to execute a Will. With that said, evidence of inability to manage one’s basic finances and care for basic personal needs are often considered by courts in support of a claim for lack of capacity.

2. When the property is transferred while the grantor is alive
This kind of transfer is also called an inter vivos gift. The grantor must have a higher level of capacity to make such gifts. In order to have capacity to make an inter vivos gift, the transferor must understand what she is doing, must understand her financial state, and must understand how the gift affects her ability to provide for the her own foreseeable financial needs.

What kind of evidence do you need when challenging a transfer or defending against a challenge?
While courts determine whether the grantor had capacity at the very day and very minute he or she signed the documents, courts will consider evidence from before and after the signing. While there is no rule specifying the time frame a court may consider, the further away you get from the execution of the document, the less weight the evidence will have.

In typical cases, evidence will include lay witness testimony and medical evidence. Lay witness testimony includes testimony of friends and family members, as well as the testimony of the drafting attorney and the witnesses. Medical evidence includes the introduction of medical records, and in some cases, testimony by an expert analyzing the medical records.

Whether you are attempting to prove or disprove capacity, it’s to your advantage to have the support and guidance of a Connecticut Will contest attorney who can help you successfully navigate the nuances of your specific situation with as little stress as possible. If you need help in this area, give us a call.


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