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Testamentary Capacity

A person who signs a will must have "testamentary capacity" - that is, the ability to understand the nature and extent of her assets and property and the natural objects of her bounty, and the ability to understand the provisions of the will.

If a person lacks testamentary capacity at the time when she signs a will, the will is invalid and will not be accepted for probate by a court. In addition, diminished capacity - whether or not it amounts to a complete lack of testamentary capacity - increases the chances that the will can be challenged on grounds of undue influence and lack of proper execution.

The Surrogate's Court in New York County recently rendered a decision in the Estate of Rose L. Augustine, NYLJ, November 27, 2007, p. 30, col. 2, in which these factors came into play. The decision sets forth facts which showed to the Court that there were doubts about Ms. Augustine's mental condition at the time when she signed her alleged last will. Because of these doubts, the will was subject to challenge on the grounds that Ms. Augustine lacked testamentary capacity.

In addition, the fact that she was in a deteriorated mental condition, Surrogate Roth said, meant that Ms. Augustine may have become more dependent upon the people who stood to benefit from any changes made in her will, and more vulnerable to undue pressure from them. Accordingly, the will also was subject to challenge on grounds of undue influence.

Moreover, the Court stated, Ms. Augustine's deteriorated mental condition raised questions concerning whether the will had been duly executed. Even though formalities may have been observed, where the testator has limited communication with the attorney who wrote the will, where her hearing was significantly impaired, and where there is conflicting testimony as to whether she reviewed the will before she signed it, the will may be subject to challenge on the grounds that it was not properly executed.

Thus, all of the grounds for challenging a will - lack of proper execution, lack of testamentary capacity and undue influence - are bolstered by a showing of deteriorated mental condition as illustrated by the Augustine case.

Where a person is severely deteriorated mentally, the person may simply not be able to execute a will that will stand up in court. In such circumstances, those involved with the situation should consider the possibility of having the individual examined by a physician to determine whether the person does have sufficient mental capacity. This approach, however, can be problematic. If the person does not pass the mental status exam, of course, the will should not be executed.

Interestingly, in Augustine there was a tape recording of a meeting which took place shortly before Mrs. Augustine signed the will. The tape recording of the meeting was cited by the Surrogate as evidence that Mrs. Augustine's mental condition had deteriorated.

In sum, all options need to be evaluated carefully before proceeding with the execution of a will by a person whose mental condition may be subject to question.

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