Testamentary Capacity and Undue Influence

last will and testament

In 2015 and 2016, media magnate Sumner Redstone amended his trust, which was challenged by former companion Manuela Herzer.  A California court recently ruled that Mr. Redstone possessed the required mental capacity to amend his estate plan.

In North Carolina, whether an individual is a billionaire business mogul or anyone else, the requirements for testamentary capacity, or the required mental capacity to create a will or a trust, is the same.

Testamentary Capacity

To have testamentary capacity a person must be “of sound mind, and 18 years of age or over[.]”  In practice, this means that the person creating the will, otherwise known as the testator, must be able to do all of the following at the time the will is created or modified:

  1. Comprehend the natural objects of his or her bounty;
  2. Understand the kind, nature, and extent of his or her property;
  3. Know the manner in which he or she desires his or her act to take effect; and
  4. Realize the effect his or her act will have upon his or her estate.

The requirement of testamentary capacity, pursuant to the four-factor test above, must be satisfied to create, revoke, or amend a trust.

This test exists primarily to protect the individual creating or modifying a will or trust from potential lack of understanding about his or her property and the effect of the proposed estate plan.  However, the requirement can also serve as a basis for challenging an estate plan.

Challenging an Estate Plan Based on Undue Influence

In North Carolina, an individual entitled under a will or otherwise interested in the estate, otherwise known as a beneficiary, may challenge the contents of the will by filing a caveat.  A common basis for filing a caveat is that the deceased individual’s will was obtained by the undue influence of another individual.  Similarly, a trust can be challenged on the basis that its creation was induced or affected by undue influence.  This means that:

  • The deceased individual was subject to the influence of another;
  • The beneficiary of the estate plan has a disposition to exert influence over the deceased individual; and
  • The resulting estate plan indicates undue influence.

Challenging an Estate Plan Based on Lack of Testamentary Capacity

Similarly, individuals entitled under a will or interested in an estate may challenge the contents of the will based on a lack of testamentary capacity.  This challenge is also brought by filing a caveat.  Generally, a successful caveat based on lack of testamentary capacity will require more than mere proof of health or memory problems.  Instead, a caveat must establish some deficiency based on the four-factor test listed above.

To speak with an experienced trust and estate attorney about executing a will or creating a trust, or about challenging a will or trust, please give us a call at (704) 457-1010 to schedule a consultation.  For more information regarding our firm, attorneys, and practice areas, please visit http://www.lindleylawoffice.com/.

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