How You Would Assess Testamentary Capacity If You Were a Lawyer

Let’s imagine that….

You’ve just earned your law degree, and Iowa’s go-to probate attorneys at the Smith Law Firm have hired you as their new intern.

The Firm’s founding partner, Tyler Smith, calls you in his office on your first day and asks you to complete a testamentary capacity assessment on an elderly client who wants to modify her testamentary documents.

Mr. Smith informs you that you’ll be evaluating a 75-year-old testatrix who lives in an assisted-living facility following a stroke that has impaired her speech and has left her deaf in one ear.

Caregivers attend to the testatrix’s everyday needs, and the elder’s adult granddaughter visits her regularly. You also learn the testatrix wants to leave her entire estate to her granddaughter and disinherit her two sons who have severed contact with her.

After the meeting ends, you thank your new boss and tell him you’ll get right on it. But you begin to sweat as you leave his office because you’re not quite sure how to do the assessment given that this is your first assignment working as an estate attorney.

Why Understanding Testamentary Capacity Is Important

Now, you may not be a new lawyer working on your first capacity assessment, but your family’s estate attorney may just subpoena you one day to testify about a testator’s mental competence if you’ve ever:

  • attended a will signing ceremony and witnessed the testator execute his estate planning documents; or
  • observed a testator’s day-to-day mental health condition before he passed away.

Such a situation may make you wonder—how do I know whether the deceased was mentally competent while in my presence?

Going Back to Our Story…

While speaking with the testatrix, you notice she is able to explain what a will does after entering probate, and she describes the assets and property in her estate and recognizes their current values. The client then proceeds to tell you her story even though her disability impedes her from communicating clearly.

You learn that the testatrix has had a change of heart and wants her belongings to go to her loving granddaughter and not to her two sons after she passes away. She also replies with a firm “NO” when you ask if her granddaughter was pressuring her into changing her will. The elder further admitted that her sons will most likely become upset after learning she disinherited them.

After reporting the details of the interview to Mr. Smith, your boss asks you to document the testatrix’s testamentary capacity and to find more evidence affirming the client’s present mental competence.

Your heart beats fast again after the meeting as you wonder what tests you should administer and whether you’re qualified to perform a proper testamentary capacity evaluation.

The Rules for Assessing Testamentary Capacity

Estate law precedent for testing testamentary capacity in Iowa dates back to an appeal brought before the Iowa Supreme Court in 1951.

In re Rogers’ Estate, the lower court refused to let the jury consider evidence indicating the testator lacked the mental capacity to execute her will.

The Supreme Court of Iowa then intervened and held when challengers assert testamentary capacity claims, they hold the burden of proving to the fact finders that the testator was incapable of understanding:

  • the nature of making a will;
  • the extent (but not necessarily the value) of his property;
  • the natural objects of his bounty (who the heirs are)
  • the distribution he desires to make and its effect (who inherits and who does not).

The Court later clarified In re Estate of Gruis (Iowa 1973) that a showing of any one of the four elements mentioned above is enough to prove the testator lacked capacity, as long as it took place when the testator executed his will.

So as you may have noticed, the “fictional you” in our story already tested the testatrix during the first meeting (you must have done well in law school to have instinctively asked your client all the right questions—wink), and the testatrix passed your assessment with flying colors.

But now the boss needs you to document the test and to come up with strong evidence revealing the testatrix is currently of sound mind in case one of her sons allege otherwise in a will dispute lawsuit during probate.

Professional Third-Party Assessment

Many estate lawyers ask doctors or other qualified healthcare professionals to examine incapacitated/elderly testators and afterwards witness them execute their testamentary documents.

Medical practitioners likewise record the testator’s capacity and mental competence exam—documentation that estate dispute defense lawyers may introduce as “clear and convincing evidence” when defending will challenges.

Practitioners can further demonstrate their expertise in assessing testamentary capacity and explain how they arrived at a favorable diagnosis while testifying at estate dispute proceedings.

Non- Professional Third-Party Assessment

Sworn testimony from the testator’s friends, neighbors, family members and other non-professional witnesses may also document the bequeather’s testamentary capacity.

However, estate attorneys must first consider the following questions to determine whether the witness’ assessment will stand in court if ever challenged:

Does the individual hold capacity to evaluate the testator?

Witnesses in Iowa must be at least sixteen years of age and possess the mental competence to reasonably evaluate the testator’s testamentary capacity before death.

Is the person an interested or disinterested party to the will?

Disinterested parties are individuals who do not personally take from the will or persons who have no relationship with the heirs or beneficiaries that do. Interested witnesses may testify for the testator, but such deposition is often open to credibility concerns among the fact finders.

Did the witness have enough contact with the testator to make a valid testamentary capacity assessment?

Make sure nonprofessional witnesses observed the testator’s mental state regularly before procuring a testamentary capacity assessment from them. Also, be weary of distant relatives coming forward to offer their testimony with intent of only wanting to settle past vendettas with sibling rivalries.

With this new knowledge, the “fictional you” in our story should have no trouble measuring the testatrix’s mental competence and securing clear and convincing evidence that can defeat most will dispute claims.

Now before we leave you, let’s take a brief look at some other items to consider when testing testamentary capacity:

Record Keeping—take detailed and synchronic notes while assessing a testator’s mental competence. You may have to refer to them years later if ever called as a witness to testify.

Understand the Elements—individuals do not need to be experts in estate law to attest to one’s mental state, but understanding the four elements of testamentary capacity mentioned above may help them better evaluate a testator.

Look Beyond the Illness—know that just because a testator suffers from a mental illness does not automatically mean he lacks testamentary capacity to execute his will. Assessments should therefore explore whether the mental illness (i.e. dementia or psychosis) influences the testator’s intent to change his estate planning documents and whether he would still make the change if his mental ilness never existed.

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