The cornerstone of any estate plan is generally a Last Will and Testament. Your Will allows you to decide who will receive your estate assets when you die. What happens though, if someone decides to contest your Will? Contrary to popular belief, a Will cannot be contested simply because a beneficiary or heir is not happy with the gift he/she received (or failed to receive) under the terms of the Will. Instead, the “contestant” of a Will must allege a legal ground on which the Will can be invalidated. A commonly used ground is “”lack of testamentary capacity.” What, exactly, does lack of testamentary capacity mean though and what can you do to decrease the chance of a successful Will contest on that basis?
After you die, your Last Will and Testament will be submitted to the appropriate court for the purpose of probating your estate. The court must first make a determination that the Will submitted is your Last Will and Testament and that the document is legally valid. In most cases, this is simply a formality; however, is someone chooses to contest the validity of your Will the entire probate process effectively comes to a halt. The only two requirements to execute a Will in Missouri (and in most states) are that the Testator (person making the Will) be over the age of 18 and that he/she be of sound mind. Contesting a Will on the basis of “lack of testamentary capacity” is essentially claiming that the Testator was not of sound mind at the time the Will was executed.
Proving lack of testamentary capacity is often more difficult than a contestant believes it will be because the mental capacity required to execute a Will is typically considerably less than that needed for other things, such as entering into a contract. Though the precise standard may differ somewhat by state, all a Testator is typically required to understand at the time of execution is:
- ·Nature of the act of executing a Will
- ·The “nature of his bounty” – understanding the relationship between him/her and the heirs
- ·Nature, extent, and value of his property
- ·The terms of the disposition of the property.
Although there is no way to ensure a Will contest will not be filed, there are some things you can do to diminish to possible and/or decrease the odds of one being successful if filed, including:
- ·Always have an attorney prepare your Will. Not only does this ensure accuracy of the document but it means you will spend time with the attorney just prior to executing the document.
- ·Submit to a physical/psychological examination just prior to executing the document.
- ·Execute your Will in front of neutral, unbiased witnesses.
- ·Write a Letter of Instruction explaining why you made any unusual, or potential conflict generating, decisions in your estate plan
If you have additional questions or concerns about your Last Will and Testament, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.
To learn more, please download our free contesting a last will and testament in Missouri here.
- Taxation of Nongrantor Trusts - October 6, 2021
- Dangers of Do-It-Yourself Estate Planning - September 27, 2021
- CRT: Best Tool for Proposed Tax Changes? - June 9, 2021
