Requirements for Making a Valid Will: Mental Capacity general capacity legal age mental capacity UPC 2-501: must have a sound mind Restatement 3rd 8.1 (b): testator must be an adult (age 18 or older) be capable of knowing and understanding in a general way: 1) the nature and extent of property; 2) natural objects of bounty; and 3) disposition making and capable of making of that property fourth requirement (in some states): must relate these elements to one another and form an orderly desire regarding the disposition of property effect of general incapacity: will is blown up; denied probate (NH 1997)(“Because the petitioner met her burden of Estate of Washburn producing evidence to demonstrate a potential failure of due execution, the trial court correctly found that the presumption of competency was rebutted and the respondent had to prove capacity by a preponderance of the that the capacity requirement evidence”)(case advances argument supports the family) (GA 2005)(No testimony was offered to establish that at cf. Wilson v. Lane the time the will was executed, Greer suffered from a form of dementia sufficient in form or extent to render her unable to form a decided and rational desire regarding the disposition of her assets)(eccentric habits and absurd beliefs are not enough to show lack of capacity) ante-mortem probate (living probate): ability to probate while testator is still alive; reduces likelihood of will challenge reasons for requiring a sound mind: protect the family: In Re decedent’s cousins instead of NWP; niece instead of Strittmater: Estate of Washburn: to preserve the family as a unit for mutual support and so caregiver; “tends provides care and support for the (SS: weak incentive); protect aged person” crazy people from exploitation by others; enhance the legitimacy of the law; cost-benefit balancing SS: capacity requirement is a limiting rule; it should be a default rule specific capacity
Requirements for Making a Valid Will: Mental Capacity general capacity legal age mental capacity UPC 2-501: must have a sound mind Restatement 3rd 8.1 (b): testator must be an adult (age 18 or older) be capable of knowing and understanding in a general way: 1) the nature and extent of property; 2) natural objects of bounty; and 3) disposition making and capable of making of that property fourth requirement (in some states): must relate these elements to one another and form an orderly desire regarding the disposition of property effect of general incapacity: will is blown up; denied probate Estate of Washburn (NH 1997)(“Because the petitioner met her burden of producing evidence to demonstrate a potential failure of due execution, the trial court correctly found that the presumption of competency was rebutted and the respondent had to prove capacity by a preponderance of the evidence”)(case advances argument that the capacity requirement supports the family) cf. Wilson v. Lane (GA 2005)(No testimony was offered to establish that at the time the will was executed, Greer suffered from a form of dementia sufficient in form or extent to render her unable to form a decided and rational desire regarding the disposition of her assets)(eccentric habits and absurd beliefs are not enough to show lack of capacity) ante-mortem probate (living probate): ability to probate while testator is still alive; reduces likelihood of will challenge reasons for requiring a sound mind: protect the decedent’s family: In Re Strittmater: cousins instead of NWP; Estate of Washburn: niece instead of caregiver; “tends to preserve the family as a unit for mutual support and so provides care and support for the aged person” (SS: weak incentive); protect crazy people from exploitation by others; enhance the legitimacy of the law; cost-benefit balancing SS: capacity requirement is a limiting rule; it should be a default rule specific capacity
WillsandTrustsOutline.docx