Challenging Challenges, Pt. 2

In a previous post, I began discussing some of the fact and evidence challenges in Will contests from the challenger’s perspective. Recall that I boiled down will contests to three basic varieties of complaints: (1) complaints about the technical execution of the document, (2) complaints about the conduct of the person making the Will, and (3) complaints about the conduct of some third-party. Last time, I outlined some of the traditional fact scenarios in a contest of the first type. This time, let’s focus on challenges to Wills based on the conduct of the person signing it.

The way I see it, there are three important time periods to focus on in challenges involving the person signing the Will, also known as the Testator. If I’m asking my contestant client the right questions, I want to learn more about (1) what the Testator did before the Will was signed, (2) what was happening at the time the Will was signed, and (3) what happened after the Will was signed. Sometimes, a client can provide information about all three time periods – sometimes not. As a general rule, I would like to know as much as possible about all three, so that we can begin to look for inconsistencies, different behaviors, different attitudes and perhaps even different mental conditions of the Testator during each of these periods.

Of the potential grounds on which a challenge to a Will can be brought, there are probably only four that are attributable to some conduct of the Testator. Obviously, each comes with their own issues of evidence and proof. Perhaps the Testator lacked the mental capacity to execute a Will at the time that the challenged document was signed. Or, maybe the document itself fails to demonstrate an actual testamentary intent on the part of the Testator. Maybe the Testator was mistaken about what the Will actually said. Or, perhaps the Testator did something after signing the document to demonstrate that she intended to revoke it.

A Will is generally defined as an instrument by which a person makes a disposition of her property to take effect at his death. This little definition actually leads to a couple of pretty important conclusions. First, no Will is irrevocable until the Testator dies. The disposition of property takes effect at death, and until that time, a Testator can change her mind and revoke the instrument. This revocation might come in the form of executing a new document, or it may come as a physical act, such as tearing the document up, or tossing it in the trash.

Second, the document must actually make a disposition of property. A fair number of Texas cases have dealt with issues regarding the wording in challenged documents. A document entitled “Last Will and Testament,” which states “upon my death I leave all of my property to my husband,” is pretty clearly a Will. But a document that looks toward the preparation of some other document, like a letter of instruction to a lawyer, may not meet the definition. “Dear Lawyer, please change my Will to leave my property to my sister,” is not language that by its own terms gives anything away. The letter looks to have the lawyer prepare a document to be signed later, and so the letter likely cannot be admitted as the Testator’s Will.

By far, however, the vast majority of Will contests that I encounter dealing with the conduct of the Testator are those that touch on the issue of the Testator’s mental capacity at the time the Will was signed. “Mom must not have known what she was signing if she didn’t leave anything to me. She had Alzheimer’s, was on medication and barely even recognized friends and family at that point.”

Testamentary capacity refers directly to the mental condition of the Testator at the time that a Will is executed. In short, the Testator must have sufficient mental capacity to engage in the act of executing a Will in order for the Will to be valid. The bar for testamentary capacity is actually pretty low, but there are some basic elements that must be met. For example, the Testator must be able to understand what a Will does, be able to know their property and be able to understand who might reasonably expect to receive it upon their death.

I find challenges to Wills on a theory of inadequate capacity pretty commonplace. After all, a fair number of Wills are often executed at a time when the Testator thinks that death might be just around the corner. Often, these times are accompanied by illnesses and conditions that affect our capacity, such as dementia, senility and Alzheimer’s Disease.

Though common, Will contests based upon a lack of testamentary capacity are sometimes incredibly difficult. In most circumstances where the Will is drafted by an attorney, the document is executed in the presence of two witnesses, a notary public and maybe others. These are people who probably observed, heard and spoke to the Testator at the very moment that she was signing the Will. These witnesses will undoubtedly form the cornerstone of the opposing party’s case, and their testimony is usually going to be pretty compelling. Who better to tell us how the Testator was behaving at the time of the execution than honest strangers who saw, heard and spoke to her?

But the issue might not end with the recollection of these witnesses. After all, if other evidence shows that the Testator lacked capacity before and after the execution, should we not reasonably believe that she lacked capacity during the execution as well? Is it really that likely that the Testator had a brief moment of clarity and senility at that exact point in time? Maybe, maybe not.

More often than not, potential contestants want to bring in their own stories of how the Testator lacked capacity. That’s fine, and they may even help prove the case. But I’m far more interested in evidence that is more difficult to call into question, and that usually means that I’m looking for something medical. Show me a physician who diagnosed the Testator with severe dementia, or a doctor who prescribed heavy medication only days before the Will was signed. Even if we have to overcome the testimony of witnesses who were there when the Will was signed, I give myself much better odds when I have more than a contestant’s sneaking suspicion that something must have been off.