Proof of Testamentary Capacity
Those who contest a will for lack of testamentary capacity must typically show that the decedent suffered from mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. Dead Man's Statutes sometimes restrict evidence which can be admitted concerning transactions with the decedent.
Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped. On video, they ask the testator about his property and about his family, and go over the contents of the testator's will.
Along with resolving an examinee's testamentary capacity, a forensic specialist observes for signs of undue influence by a concerned party that exploits an emotionally vulnerable individual who might otherwise be cognitively intact. The testamentary capacity matter is most frequently raised posthumously, when an aggrieved heir contests the will entered into probate. For this reason, the forensic psychiatrist or forensic psychologist studies the testatrix’ cognition through videotape record of the drafting of the will, or by reviewing email, letters and other records.
Even when a testator are found to have lacked testamentary capacity due to senility, loss of memory due to the aging process, infirmity or insanity, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the testamentary instrument. Such finding will validate a will that would otherwise be denied probate.
A way to forestall a will contest would be to have a self-proving will, in which an affidavit of the witnesses to the will specifically swear or affirm that the will was prepared under the supervision of an attorney.
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