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TESTAMENTARY CAPACITY = SOUND MIND
Testator must have the ability to know and understand the following:
- They are making a will
- The objects of their bounty and claims upon them
- Blood relatives, close friends, occasionally faithful servants
- The general nature and extent of their property
- A reasonable approximation of the overall worth.
- Less than 3% of wills are contested
- Only 15% of these are successful
- Presumption of testamentary capacity
- Party alleging deficiency
- Generally requires clear & convincing evidence
- If the testator was adjudicated incompetent
- Can still have a valid will but the burden of proof shifts to the proponent of the will to establish by clear and convincing evidence that the will was made during a Lucid Interval ( In Re Coe’s Will 1900)
Being psychotic does NOT invalidate a will, nor does suicide.
TWO BASIC REASONS FOR INVALIDATING A WILL
- INSANE DELUSIONS
- if the will is the PRODUCT of a delusional belief
- Spouse having an affair
- My children are really Martians
- UNDUE INFLUENCE
- Manipulation or deception in engaging the affections of the testator, significantly impairing the ability of the testator to freely decide on the distribution of his property
- The result of concealed action difficult to prove
- The courts look for evidence of “coercion, compulsion, or restraint” which led to a will that does not reflect the desires of the testator.
TYPES OF GUARDIANSHIP
- TESTAMENTARY GUARDIANSHIP
Is appointed for a child by will and probated by the Court. A parent can appoint a guardian for their child. The guardian has the responsibility for the child and the child’s estate until the child has attained legal maturity age.
- GUARDIAN AD LITEM
Represents a person’s interests in a single judicial action. A temporary guardian appointed by the court to defend the interests of a minor or an incompetent person in a litigation- usually a lawyer. Is responsible only for decisions on behalf of the ward that pertain to legal proceedings.
LIMITED GUARDIAN OR CONSERVATOR
- A guardian who has a power limited to managing the ward’s FINANCIAL AFFAIRS.
GENERAL GUARDIAN OR COMMITTEE
- Appointed by court with broad power over BOTH the PERSON & the ESTATE of the ward.