Testamentary Capacity

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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.

WILL CONTESTS

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)

WILL CONTEST

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.