The loss of a loved one is difficult to accept under the best of circumstances. It is ever more difficult to accept, however, when you have reason to believe that the Last Will and Testament submitted for probate is not valid. One of the most frequently used grounds in a Will contest is to claim that the Testator lacked the requisite “testamentary capacity.” What exactly is testamentary capacity and how do you prove that the Testator lacked the necessary capacity to execute his/her Will though? Litigating a Will contest often involves complex legal arguments and confusing facts which is why you should always consult with an experienced attorney before deciding to move forward with a Will contest. If you have concerns about the circumstances surrounding the execution of a recently deceased loved one’s Will though, it may help to gain a basic understanding of what is meant by “testamentary capacity” and what you need to prove to contest a Will based on the lack of testamentary capacity. Toward that end, the Nashua estate planning lawyers at DeBruyckere Law Offices discuss proving lack of testamentary capacity in a New Hampshire Will contest.
Contesting a Will in New Hampshire
Concerns about the validity of a Will might arise because the Will was executed under unusual circumstances, because changes were made to a Will at the last minute, or because the terms of the Will appear out of character for the Testator. Regardless of what triggers the concern about the Will submitted to probate, there are several legal requirements that must be met for a Will contest to proceed, including:
- The contestant must have “standing.” Standing refers to the legal right to bring the legal action, in this case, a Will contest. To have standing, you must be considered an “interested person.” As a general rule, this includes beneficiaries under the Will submitted to the court, beneficiaries under a previous Will, legal heirs of the estate, or possibly a creditor of the estate.
- The Will contest must be initiated in a timely manner. In New Hampshire, a Will contest must be initiated within six months after the Will is submitted to probate.
- The challenge must allege legal grounds on which the Will could be declared invalid. Being left out of the Will, or receiving less than you anticipated, is insufficient to bring a Will contest. Instead, you must allege (and ultimately prove in order to be successful) one of the following grounds in New Hampshire upon which the Will could actually be declared invalid:
- Improperly witnessed – to be valid, a Will must be “signed by 2 or more credible witnesses, who shall at the request of the Testator and in the Testator’s presence, attest to the Testator’s signature.”
- Lack of testamentary capacity – the most commonly used ground for contesting a Will.
- Undue influence – undue influence exists if it “took away the free will of the Testator, and substitute another’s will for his, so that in fact the instrument is not the expression of the wishes of the Testator in the disposition of the property, but of the wishes of another.”
- Fraud — the intentional concealment of a material fact as well as in a false statement of a fact.
- Revocation – the discovery of a subsequently executed Will that revokes the Will submitted to the court for probate.
Proving Lack of Testamentary Capacity
Testamentary capacity is an elusive concept because it differs from the capacity needed in other areas of the law, such as the capacity necessary to enter into a contract. For example, someone in the early stages of Alzheimer’s might be found to lack the mental capacity needed to enter into a contract, yet be found to have had the testamentary capacity necessary to execute his/her Will at the same time. In New Hampshire, testamentary capacity requires the Testator to:
- Understand the act of making a Will;
- Understand the property to be disposed of and its general nature;
- Understand his or her natural objects of affection, usually the Testator’s nearest relatives;
- Understand and intend to carry out the Will’s dispositional scheme; and
- If capacity is present, the Will must not be the offspring of a delusion
It is often more difficult than people think to prove that a Testator lacked testamentary capacity. One reason is that the focus in on the exact point in time when the Will was executed. If the Testator’s mental capacity varied over time, but he/she has lucid intervals, then the Testator may be declared to have had the necessary testamentary capacity if the Will was executed during a lucid period. Furthermore, the presumption is that a Testator did have the requisite capacity, meaning that a contestant must prove that the Testator did not have the necessary capacity.
Contact Nashua Estate Planning Lawyers
For more information, please download our FREE estate planning worksheet. If you have additional questions about contesting a Will in New Hampshire, contact the Nashua estate planning lawyers at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
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