A will may be invalidated if the person executing the will (called the testator (male) or the testitrix (female)) lacked the capacity to execute the will. Generally, the person executing the will has "sound mind" when he or she has the ability to mentally understand in a general way:(1) the nature and extent of the property to be disposed of; (2) the testator's relation to those who would naturally claim a substantial benefit from his will; and (3) a general understanding of the practical effect of the will as executed.

In a will contest for lack of capacity, it is important to know that the burden to prove that someone lacked capacity is on the person wanting to invalidate the will.  The law presumes that the person executing the will had capacity.  The standard that has to be met is that the person challenging the will has to demonstrate that it is more likely than not that the person who executed the will lacked capacity.  It is also important to note that even if someone lacks capacity, that person can still execute a will if the person has a "lucid moment."  In practice, it is difficult to prove someone lacked capacity unless the person is quite incapacitated.  What happens in a trial is that each side will hire an expert.  Most of the time the proponent of a will can find an expert that will testify that it is not clear that the decedent lacked capacity.  When you hear that type of testimony, you have a problem because the person attempting to invalidate the will has the burden of proof on the issue.  However, it is also true that someone who appears to have capacity can actually lack capacity because sometimes only someone skilled in this area of law understands the issue.  Thus, if your relative executed a will under suspicious circumstances then contact Linde Law Group for more information.

Matthew A. Linde
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