Beyond The Will, Client Compass

Lack of Capacity – The Basics

March 31, 2020


Lack of capacity is, perhaps, the most common ground relied upon for challenging a will, trust, lifetime transfer, or beneficiary designation.  In addition to standing alone as a claim, it is often intertwined with claims of undue influence, discussed in Tiffany Bentley’s post here, because limited capacity may render a person subject to undue influence.  On its own, lack of capacity can be summarized as an assertion that the person who made the will (“the Decedent”) didn’t know what they were doing.  Although common sense would suggest this is a relatively simple issue, lack of capacity claims can be factually and legally complex.

It is important to note at the outset that there is not a single standard for capacity with respect to legal documents. “Testamentary capacity”, discussed here, specifically addresses the mental capacity needed to make a valid will or trust.  In cases where there is a disputed will, there may also be questionable deeds, contracts, or powers of attorney which require different standards of capacity.  While it is always advisable to seek out skilled probate litigation counsel, it is particularly important in cases where you need to simultaneously invalidate multiple documents related to illegitimate property transfers.

At the start of any capacity case, the proponent of a will benefits from a legal presumption that the testator had capacity.  It is the burden of the person challenging the Decedent’s will to present evidence showing that the testator lacked capacity.  If enough evidence is presented, the burden shifts and the proponent of the will then have to prove that the Decedent had capacity at the time the will was executed.

In order to decide whether the Decedent had testamentary capacity, the Courts must find that they had:

  1. the ability to understand and carry in mind, in a general way, the nature and situation of their property;
  2. the ability to understand their relations to those persons who would naturally have some claim to their remembrance;
  3. freedom from delusion which is the effect of disease or weakness and which might influence the disposition of their property; and
  4. the ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

In short, the evidence must show that the Decedent had the ability to understand their property, relations, and what a will is, without delusions and at the time the Decedent executed the will.  It is perhaps easiest to understand each of these factors by looking to their intent, instead of their specific language.  They each require a factual inquiry into a discrete aspect of cognitive ability that the Decedent must have in order to know what they are doing when they make a will.  Put another way, if the Decedent doesn’t have one of these abilities, one would say that they did not know or understand their own will.

Generally, cases where there is an issue of capacity are discovered in two ways: first, the Decedent had a known cognitive decline and, after their death, a will is found that was executed after their decline started.  That will, of course, does not comport with the Decedent’s known wishes when they had capacity.  Second, the will is found and contains evidence that the Decedent, who may have had a cognitive issue that was not well-know or that avoided diagnosis (often because the Decedent didn’t want anyone to know they were losing their “fastball”).

It is sometimes the case that individuals who had cognitive impairments substantial enough to cause a lack of capacity are able to hide their deficits, particularly if they have a good support network of friends and family who are willing to take on tasks that become more difficult.  For example, paying bills, managing finances and/or property, scheduling events, or other cognitively demanding tasks.  Similarly, an individual suffering cognitive decline may mask the social consequences of their condition behind adaptive behaviors to distract others from their inability to remember names, relationships, and events.

Whether any specific individual did suffer a lack of capacity requires thoughtful investigation, careful analysis, and may require input from a medical expert qualified to testify on the issue of individual capacity — particularly if their efforts to avoid acknowledging their own cognitive issues resulted in a thin or fragmented record.  While there are common “types” of loss in cognitive abilities, it should not be overlooked that the scope, persistence, and nature of an individual’s cognitive decline or impairment is unique to that individual.  That an individual’s specific cognitive impairment or decline doesn’t fit a typical pattern is not a bar to a successful claim.

Of course, cognitive ability varies greatly in individuals and decline in capacity may not be fixed.  It is not uncommon for individuals with cognitive issues to experience alternating periods in which they have more or less capacity, even while continuing an overall trend of decline.  The law recognizes this reality as well in the “lucid interval” doctrine.  This doctrine – a key principle that is often the biggest stumbling block for a lack of capacity claim – provides that an individual may have testamentary capacity at any given moment, even if they lack it at all other times.  Consequently, the ability to generate evidence and compelling arguments that the Decedent was suffering from a lack of capacity at the time the will was executed is critical to the success of a lack of capacity claim.  As with most probate litigation matters, the best course is to consult with an attorney who specializes in the area to ensure that you gather the necessary evidence and make the most of the record available.

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