Q&A: Smith Law of Iowa Probate Litigators Give Their Expert Take on Lack of Testamentary Capacity Issues in Will Challenges

It’s shared knowledge that a legitimate last will and testament requires decedents to have held a fair standard of mental awareness when they executed their estate planning documents. Diminished testamentary capacity assertions however are not that straightforward.

In this blog, the estate dispute litigation team at the Smith Law Firm will take on some questions and discuss what you need to know when alleging incapacitation in a will dispute.

Q: My father was a self-made man but began experiencing dementia towards the end of his life. My stepmother was with him when he executed a will that left most of the estate to herself and her daughters. Can I challenge the will to redress the inequitable balance of assets among my father’s heirs?

A: From what we understand, you wish to invalidate your father’s will offered in probate and have the courts declare the estate intestate (without a will) where strict probate laws will hopefully distribute your father’s assets more evenly. To accomplish this, you must first meet with a well practiced estate dispute attorney to determine if you hold standing to contest your father’s will and challenge its legitimacy.

Q: So I must contest the will and show the reason why my father eliminated my inheritance was because his partner never liked me. Is that correct?

A: Proof of motive may support your case, but arguments alone that speculate why your father left you out of his will not nullify the document. You can only challenge a will in Iowa if you have evidence that proves: your father improperly executed his will; another person unduly influenced him; someone defrauded your dad into signing the will; or your father lacked the testamentary capacity to execute the will. Your particular circumstances call for a will contest claiming incapacity.

Q: You mentioned I needed to challenge my father’s will and show incapacity. Could you explain more about what that means?

A: Absolutely! Your dad must have held competent mental capacity while he planned his estate. This means he must have been of sound mind to understand:

  • he was creating or altering his will;
  • the nature and value of the property and assets he was disposing of upon his death;
  • who the expected heirs and beneficiaries were; and
  • how his will would impact the interested parties.

In your case, your father’s dementia during estate planning may have prevented him from understanding the consequences of leaving you out of his will. We would have to weigh the evidence surrounding the controversy and determine if it passes incapacity requisites by failing to satisfy the criteria mentioned above.

Q: I know my father had dementia, but I’m not sure how to prove it. What evidence will I need to show he lacked testamentary capacity?

A: Your evidence must reveal your father’s state of mind before and shortly after he executed his will. You may prove his incapacity in several ways:

  • Medical Records—a showing of a mere personality change or indifference is not enough to support your case here. You would need a professional healthcare diagnosis of dementia or mental illnesses affirming your father’s disability affected his capacity to understand what he did on a daily basis.
  • Expert Testimony—you may also substitute a medical diagnosis with expert testimony from healthcare professionals who treated your father, citing his displays of unsound mind while he was their patient. We can likewise have our team of medical experts review your dad’s healthcare records and offer their medical opinions about your father’s lack of testamentary capacity.
  • Witness Testimony—your dad must have had relatives, friends, business partners, neighbors or attorneys who witnessed his regular displays of dementia. We can subpoena these individuals and present the court with their sworn statements to show your father was confused, inattentive or delusional at the time he executed his will.

Q: So I just have to show my father had dementia and I’ll win my will challenge, or is there something else I must prove?

A: Prevailing in a lack of testamentary capacity claim is all about intent. Individuals with mental illness or other psychological disorders may still hold competence to disinherit a relative if despite their disability they knew what they were doing when planning the estate.

Mental incapacity like dementia sometimes appears and subsides in individuals. So just because your dad suffered from a serious mental illness does not automatically mean the courts will invalidate his will.

We can successfully argue your father always INTENDED to leave you assets but didn’t do so because despite appearing well sometimes, his unstable mind present during the estate planning told him not to.

Q: You talked about both undue influence and testamentary capacity and they appear to be similar claims. What’s the difference between the two?

A: Testamentary capacity refers to the incapacitated state of mind your father possessed at the time he asked his lawyer to plan his estate.  Your will challenge will assert such grounds allows the court to throw out your father’s will and declare his estate intestate.

An undue influence claim would also affirm your father was of unsound mind, except it was another person in a close or confidential relationship with him, say you stepmother, who was responsible for your disinheritance.

If the evidence shows your stepmother took advantage of your father’s vulnerable mental incapacity and seized control of your father’s intent by pressuring or coercing him into eliminating your inheritance and moving your assets to her, we may consider an undue influence claim might be more appropriate grounds to challenge the will.

Q: I am almost positive my stepmother will fight my lack of testamentary capacity claim. How do you think she’ll attack it?

A: Will contest incapacity defenses often assert case law precedent that affirms displays of old age, intellectual weakness, and bizarre behavior seldom constitute a lack of capacity to plan an estate.


Your stepmother may also argue that your father’s competent estate planning attorney observed your dad’s mental condition while planning the estate and would have never let your father execute the will if he thought your dad lacked testamentary capacity.


Finally, expect the defense to contend that while your father was battling dementia, he encountered a moment of clarity before and after the will’s execution. The testamentary document is therefore valid because he intended to disinherit you when he was sane.

Q: I am already on shaky ground with my stepmother. Do you believe my will challenge will destroy what’s left of our relationship?

A: You should recognize that most will challenges cause tension among the parties named in the controversy, especially if the estate is valuable. Before you strain the relationship between yourself and your stepmother, be sure you can satisfy the high burden of proving your father disinherited you because of incapacity. If you hold a borderline claim, we recommend you consider other dispute resolutions instead of suing her.

Click Here to talk to us about your potential incapacity claim and discover if you can protect your inheritance by invalidating a will in probate.