Win Testamentary Capacity Will Challenges Through Evidence of a Testator’s Memory Loss

The law presumes you make your intentions evident when disposing your assets through a valid will or trust and that you possessed the requisite legal capacity to do so before executing such testamentary documents.

When testators however lack testamentary capacity, undue influence sometimes follows which can adversely impact an heir’s rightful inheritance during probate.

For this reason, the Iowa Supreme Court ruled in 1951 that estate planning lawyers must evaluate their client’s testamentary capacity in good-faith before drafting any legally enforceable testamentary document that can touch another’s legacy.

This may seem like a straightforward task to many—just have testators take cognitive tests and review their mental health history.

Experienced estate dispute litigators however recognize that some testators with impeccable medical records may successfully pass standard mental aptitude exams during pre-draft meetings but actually possess “hidden diminished capacities” that prohibit them from properly executing a will.

Memory loss and apathetic behavior during estate planning are examples of potential incapacity and should be on the radar of every attorney who strives to follow Iowa’s strict testamentary capacity precedent law.

Let’s consider John’s will contest against Michael’s estate to better understand how a testator’s forgetfulness, and later, misapprehension may affect one’s inability to execute his/her testamentary documents.

Confusion Follows a Father’s Poor Memory

Michael passed away in 2010 with his children, Kate and John, being his only issue. Kate later produced her father’s will of which left Michael’s entire estate to his daughter.

John soon after retained an estate dispute attorney to challenge his father’s testamentary documents, claiming that despite passing cognitive tests during estate planning, his father’s well-documented memory loss left him confused as to which heirs should inherit his estate while drafting his will

John had worked on his father’s farm since he was fifteen, and he ultimately purchased the land from his dad for a fair price ten years before Michael executed the will in controversy.

At the time of purchase, documents show that Michael didn’t just agree to the sale, he also had a business partner review and sign off on the deal before the transaction closed. Testimony further proves that John and his father maintained a loving relationship for many years immediately after John purchased the farm.

Michael however suffered several mild strokes after 1995, with the last one occurring a few months prior to execution of the will in 2000.

As Michael recovered from the strokes, his family and friends noticed the testator forgot things regularly and that his attitude toward John changed after questioning whether the farm sale to his son ten years earlier was fair.

John’s aunt likewise claimed her brother forgot he no longer owned the farm and became furious after assuming his only son had stolen the land.

Finally, Michael left a message on his son’s answering machine a few months before passing away saying he was homeless and needed the farm back because he had no money when in fact the father held assets totaling over $3 million.

Testator’s Indifference Touches Son’s Inheritance

During pre-draft meetings with Michael’s estate attorney, the testator could name his children and grandchildren as heirs and list the assets to include in the will.

Michael’s medical records consequently affirmed the testator suffered a few mild strokes, but Michael scored high on standard cognitive tests taken before executing the will, and he showed no signs of inattentive or forgetful behavior while meeting his lawyer.

The decedent did however tell his attorney to exclude John from the will, claiming his son should not inherit because he did not pay fair market value on the farm sale years prior. Yet when the lawyer asked Michael about the specifics of the deal, the father could not recall any details of the transaction.

Shifting the Burden to the Defendant

John can prove his father possessed a poor memory at the will signing ceremony and held disoriented motives and reasoning for removing him from the will—sufficient presentiments for shifting rebuttable presumptions relating to capacity to his sister.

Once John’s probate litigator successfully establishes the suspicious circumstances of John’s exclusion from the will, the courts will most likely shift the burden to Kate to prove her father executed his testamentary documents properly and without undue influence.

Kate thereafter would hold the burden of showing her father:

  • Understood how legally binding testamentary documents work;
  • Knew the extent of his property and the bequeaths he owned
  • Recognized his heirs (natural objects of his bounty); and,
  • Realized how asset distribution would affect his heirs.

Memory Loss and Testamentary Incapacity

Iowa probate judges have long held that a testator’s memory directly relates to testamentary capacity.

In re Estate of Cory (Iowa 1969), the Iowa Supreme court noted that “evidence of [a testator’s] good memory supports testamentary capacity” and that a jury could reasonably find a defendant possessed “mental unsoundness at the time of making the will” when evidence reveals the deceased’s memory was impaired.

More specifically, when deciding In re Estate of Lachmich (Iowa 1995), the Iowa Court of Appeals found a testator’s poor memory during will drafting activities may or may not injure his/her sound mind and that juries must explore the quality of a decedent’s memory impairments as they relate to testamentary capacity.

The Lachmich Court especially noted that when testators can’t remember which heirs may inherit from the estate or when diminished memory provokes delusions that lead to a wrongful disinheritance, their minds are “injured or destroyed.”

Cognitive Tests Don’t Reveal Everything

Lachmich and Cory likewise suggest that testamentary incapacity can occur despite testators successfully answering familiar cognitive questions during their estate planning meetings; knowing their assets’ disposition; and understanding who may or may not take from their estates.

The supporting evidence that documents Michael’s declining memory and confusion in the above case therefore supports John’s lack of testamentary capacity claims under estate dispute law precedent:

  • Michael mistakenly thought he still owned the farm.
  • The testator forgot he owned millions in assets.
  • The deceased became enraged and genuinely believed his only son swindled out of paying a fair price for the land.
  • Michael could not recall details of the farm sale during pre-draft meetings with his lawyer.

Key Takeaways

A testator’s underlying mental incapacity may impact a successor’s rightful inheritance—estate dispute lawyers must accordingly investigate minute signs of poor memory and displays of apathetic behavior among clients to determine if forgetfulness has influenced their testamentary dispositions.

Lapse of memory may further provoke confusion or insane delusions—such mental misconceptions may appear to be legitimate concerns, but under direct scrutiny, these misunderstandings directly relate to testamentary incapacity.

Will challengers need only raise an evidentiary suspicion of incapacity to move the burden of proof to the defendant—most defendants find this presumption extremely difficult to overcome.

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