Testamentary Capacity and Undue Influence in Will Contests

by Stephen Taylor
January 31, 2012
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The two most common legal theories used in will contests are lack of testamentary capacity and undue influence. While the basic principles of these two theories have long been established in Virginia, a recent decision handed down by the Supreme Court of Virginia illustrates the difficulty in satisfying the burden to prove lack of capacity and/or undue influence by an opponent to the will.
In Weedon v. Weedon, No. 101901, 2012 Va. LEXIS 7 (Va. Jan. 13, 2012), four of the deceased testator’s children challenged the validity of her 2008 will, arguing that their mother lacked the mental capacity to execute the will and that their sibling, the proponent and beneficiary of the 2008 will, exerted undue influence on their mother’s execution of the will. The elderly testator, confined to the hospital, executed a new will four days before she died, leaving all of her assets to the beneficiary child to the exclusion of the remaining four children. The beneficiary child was alleged to have taken control of her mother’s financial and medical affairs while gradually isolating her mother from her siblings.
The trial court held that (1) the testator lacked the requisite testamentary capacity at the time she executed the will, and (2) even if the testator did have capacity, then the testator was subject to the undue influence of the beneficiary child when she executed the 2008 will.
In a decision handed down in mid January 2012, the Supreme Court of Virginia reversed the trial court’s decision and remanded the case for further proceedings. On the issue of testamentary capacity, the Supreme Court first held that an assessment of a testator’s mental capacity by the drafting attorney’s legal assistant or paralegal can be afforded the same weight as a similar assessment made by the attorney. The Supreme Court then held that the crucial moment for determining the testator’s capacity is the time of execution, finding that the trial court erred in placing more weight on the testimony of the will opponents’ expert witness and the testimony of the testator’s other children, who were not present when she executed the will, than it did on the testimony of the witnesses, notary, and beneficiary child who were present when the will was executed.
Turning its attention to the allegation of undue influence, the Supreme Court held that even when undue influence is presumptive (such as when a fiduciary relationship exists between the testator and the individual alleged to exert the undue influence), “[t]he burden of showing undue influence rests upon whose who allege it, and it cannot be based upon bare suggestion, innuendo, or suspicion.” It has long been established that in order to prevail on this type of claim, the undue influence must not only be present, but it must also overcome the testator’s own free will (e.g., “it is not my will, but I must do it.”). In the present case, the Supreme Court held that the trial court focused on the circumstantial evidence that raised the presumption of undue influence while overlooking the ultimate inquiry: whether the testator’s own free will was overridden.
The Weedon case shows how difficult it can be to challenge a will on the basis of mental incapacity and/or undue influence. Despite this ruling, however, each case will continue to be decided on its own set of specific facts and circumstances. If you suspect a loved one has been subject to undue influence or lacked the capacity to execute estate planning documents, then you should confer with an attorney to discuss the specific factors of your case.
The attorneys at Oast & Hook can assist families with their estate, financial, insurance, long-term care, veterans’ benefits, and special needs planning issues.
Stephen Taylor is an elder law attorney with Oast & Hook, and he practices in the areas of estate planning, estate and trust administration, business planning, and litigation. Mr. Taylor is licensed to practice law in Virginia and North Carolina.

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