Will Contests: Lack of Capacity & Undue Influence

In this Elder Law Minute, Wes Coulson explains what to look for when deciding who is competent enough to sign a will.
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Video Transcript:
Greetings I'm Wes Coulson from Dent Colson elder law and this will be your Elder Law Minute we're happy to present these because we think we can help inform you as to the ways in which we can help you and the things that you need to think about, relative to the elder care and estate planning Journey hope you enjoy.
I want to talk to you today about the two main arguments presented when somebody tries to have a will set aside in court to have it ignored. What those are, are lack of capacity and undue influence. Lack of capacity relates to the legal tests that in order to be considered competent to have a will, the person who is signing it, at the time they sign it, has to understand what their estate is; who their next of kin are, so they're close relatives; and be able to form a plan for distribution of their estate. So, if you don't know those things you're not competent to sign a will. The other big one is what's called undue influence and what that means is that it wasn't really your will, that somebody else told you or forced you to say here's what you need to say in your will, and so what reflects in your will is really what somebody else wants and not what you want.
Now in will contest lawsuits usually both of those arguments are advanced because they sort of work together, and that comes down to the situation in which someone is, what I will call “suggestible”. That their level of capacity is sort of, well maybe they're okay maybe they're not, and what that means is that it's easier they they're the straw house and the three little pigs, it's easier to knock down their capacity because it's easier for somebody to say, “now Mom you remember blah-blah-blah, and why you should do this and that”, and they will do it. Whenever we do Wills for people part of the process is making sure that we've covered those things, that we talk to the person individually without others in the room to sign their will, and in a few cases where we thought there might be a will contest we've even gone to the point of videotaping the will signing because if you will a jury looking at you and seeing yeah-yeah, he's with it is going to be the single best evidence that you are.
Thanks

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