Law of Wills, 2016A

Chapter Nine: Testamentary Capacity (Mental Competency and Insane
Delusion)
9.1. Introduction
A probate attorney has two key roles: (1) to execute a will that carries out the testator’s intent
and (2) to create a will that is challenge-proof. Persons seeking to contest the probate of a will
usually take two avenues—they challenge the testator’s capacity to execute the will and/or they
challenge the validity of the execution process. This chapter and Chapter 10 examine the ways in
which the testator’s ability to execute a legally enforceable will may be called into question. The cases
in this chapter deal with the manner in which some defect in the testator may prevent him or her
from being capable of executing a valid will. The cases in chapter 10 focus upon the way that the
actions of other people may interfere with the testator’s ability to execute a valid will. Chapter 11
and Chapter 12 discuss will contests based upon the testator’s failure to follow the execution
process.
According to the law in all states, in order to execute a will, a person must be at least 18
years old and of sound mind. The statutes do not include a definition of what it means for a person
to be “of sound mind.” When evaluating the soundness of a person’s mind, lay persons think in
psychological terms. For example, if a person has been diagnosed with some type of mental illness,
the average person would say that person is not “of sound mind.” However, a mentally ill person
may be legally competent to execute a will. 84 The level of mental competence necessary to execute a
will is very low compared to what is required to undertake other legal actions like executing a
contract, obtaining a marriage license or executing a deed to transfer title to a piece of property. 85
The attorney who prepares the will and assists in the execution process has a duty to
determine whether or not his or her client is legally “of sound mind.” Most attorneys have not been
trained to make psychological evaluations. Thus, in order to determine if a client has testamentary
capacity, an attorney must rely on the guidelines provided by the courts. In order to be deemed to
have testamentary capacity, at the time that the will is executed, the testator must know the
following: (1) the nature and extent of his or her property; (2) the persons who are the natural
objects of his or her body; (3) the disposition he or she is making; and (4) the manner in which these
facts related so far as to form an orderly plan for the disposition of his or her property. The attorney
should take steps during the initial client interview to determine if his or her client can satisfy the
testamentary capacity test.
Once an attorney concludes that his or her client can satisfy the mental capacity test, that
may not be the end of the story. The client may do or say something to lead the attorney to believe
that the client is suffering from a misconception that could hamper his or her ability to create a will.
The insane delusion test is a two part test. The court first has to decide whether or not the testator
was suffering from an insane delusion when the will was executed. Then, the court has to determine
whether the dispositions the person made were a result of that delusion. 86 A delusion is insane even
84
Matter of Gentry’s Estate, 573 P.2d 322 (Or. App. 1978); Briggs v. Kreutztrager, 433 S.W.3d 355 (Ky. App. 2014).
85
Denson v. Moses, 2 So. 3d 847 (Ala. App. 2008).
86
Breeden v. Stone, 992 P.2d 1167, 1171 (Colo. 2000).
409