When a loved one passes away, it can be difficult to accept the loss. Sometimes, the grieving process is made even more difficult as a result of concerns surrounding the decedent’s state of mind at the time he/she executed a Last Will and Testament. When that happens, it adds uncertainty and confusion to your already heightened emotions. How do you prove that your loved one did not have the requisite testamentary capacity to execute his/her Will? To give you an idea of the road ahead, a Grand Forks probate attorney at German Law explains how to prove lack of testamentary capacity in a North Dakota Will contest.
What Is a Will Contest?
A Last Will and Testament is a legal document that allows the person creating it (the “Testator”) to dispose of his/her estate assets after death. Understandably, the law wants to be sure that the terms and provisions of a Will truly reflect the wishes and desires of the Testator and that the Testator was of sound mind at the time the Will was executed. Because the Testator will no longer be around to confirm his/her wishes, the law requires a Will to be authenticated by a court before the terms of the Will can be followed. This occurs during the legal process known as “probate.” It is also during this time that a challenge to the validity of the Will may be brought.
Grounds for Contesting a Will
State law governs who may contest a Will and what grounds may be alleged in a Will contest; however, in most states (including North Dakota) one of the most common grounds used to contest a Will is “lack of testamentary capacity.” Other allowable grounds in a Will contest in North Dakota include:
- Fraud – this can refer to a situation wherein the Testator was tricked into signing the Will or where fraud was used to deceive the Testator regarding the terms of the Will.
- Undue influence – if someone exerted too much influence, or negative influence, over the Testator during the creation of the Will it may be grounds for invalidating the Will.
- Improper execution – every state, including North Dakota, has rules for how a Will must be signed. For example, if the Will must be signed in front of witnesses, and it wasn’t, that can be grounds for contesting the Will.
- Revocation or subsequent Will — if the Testator subsequently revoked the Will submitted for probate it makes the Will submitted for probate invalid.
Proving Lack of Testamentary Capacity
Contestants in a Will contest frequently allege that the Testator lacked the requisite testamentary capacity because it is a broad concept. In addition, many contestants mistakenly believe it will be easy to prove. In reality, however, it is not all that easy to prove that a Testator lacked testamentary capacity, due in large part to the fact that the capacity necessary to execute a Will is different from that needed in other areas of the law. For example, a Testator might be found to have the capacity necessary to execute a Will while that same individual would have been found not to have the capacity necessary to enter into a contract. In general, a Testator in North Dakota has the requisite capacity to execute a Will if the Testator has the strength and clearness of mind to understand the:
- Extent and character of the property involved
- Names and identity of the beneficiaries
- Appreciate the character of the act
The Testator must also understand and appreciate the relationship between these factors. Finally, it is important to understand that when evaluating the capacity of a Testator, the court will look specifically at the time when the Will was executed. A Testator suffering from early stage dementia, for example, might have periods when he/she lacks capacity but also have periods of clarity when the capacity to execute a Will exists. As long as the Will was executed during a period of clarity, the court may uphold the Will’s validity.
Contact a Grand Forks Probate Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a Will in North Dakota, contact a Grand Forks probate attorney at German Law by calling 701-738-0060 to schedule an appointment.