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Volume XI, Number 296

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Invalidating a Will Due to Lack of Competency of the Decedent

During a Will contest, there are several different ways that a party seeking to challenge the validity of a Will may attack the document. One of the most common ways is to challenge the decedent’s competency when he/she executed the Will. In essence, the challenge would be that the decedent was not mentally competent at the time he/she executed the last will and testament, and therefore, this document is invalid as a matter of law.

First, it must be noted that the competency necessary to execute a last will and testament is quite low. In general, the decedent must understand the nature of the property he/she has, and who they are conveying their property to in order to possess the requisite capacity to distribute their property pursuant to their Will. Also, the decedent must understand that by executing the Will that he/she will be transferring the property they have to the people they designated in the Will.

Despite this low threshold of competency to execute a last will and testament, a challenge to the decedent’s capacity is often pursued during a lawsuit challenging a Will. To prosecute a claim challenging the decedent’s competency, several factors must be taken into account. Each of these factors directly interplays with each other and ultimately will determine whether the decedent was incompetent when the last will and testament was executed.

One important consideration is whether the decedent was actively being treated for conditions that affected his/her mental capacity when the last will and testament was drafted and executed. Such conditions might be Alzheimer’s, dementia, or other degenerative diseases that may affect the decedent’s competency negatively. In this regard, medical records are very important in determining the decedent’s level of capacity when the Will was drafted and executed.

However, equally important to medical records are witnesses who may possess first-hand knowledge and observations they made of the decedent around the time the Will was drafted and executed. These witnesses may possess knowledge concerning the decedent’s capacity or competency or serious issues they may have observed concerning the decedent. Such witness testimony can be just as important, if not more so, than what the medical records reveal. These witnesses can be medical professionals, caretakers, friends, or family.

The last area of relevant evidence to consider is the witnesses to the Will, as well as the attorney, who were present when the decedent’s will was drafted and executed. The reality, however, is that it is rare for these individuals to say that the decedent was not competent, as it would then indicate that they fraudulently had the decedent execute a Will. As a result, if you are prosecuting a claim to invalidate a will based upon competency, an appropriate investigation must be made in order to be prepared to attack what these witnesses might say.

In summation, challenging a will based upon the decedent’s lack of competency is an intensely factual, sensitive determination. This determination is typically made after reviewing medical records, documentary evidence, and first-hand witness testimony of both medical professionals and laypersons. This process can be pretty complex; however, it can be successful if appropriately managed by competent counsel.

COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume XI, Number 82
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About this Author

Paul Norris, Stark and Stark Law, Probate Litigation Lawyer, Construction Attorney, New Jersey
Shareholder

Paul W. Norris is a Shareholder and a member of the Firm’s Litigation Group. Mr. Norris’ areas of practice include: Probate Litigation; Construction Litigation; Commercial Litigation; and Criminal and Municipal Court representation. Mr. Norris has an extensive and growing Probate Litigation practice, which concerns either defending, or initiating Will contests on behalf of beneficiaries and purported beneficiaries of an Estate as well as related litigation. He has both prosecuted and defended actions successfully in this regard, and also serves as a Court appointed...

609-895-7325
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