§ 301 REQUIREMENTS FOR VALIDITY: TESTATOR

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 301 Requirements for validity: Testator

To make a valid will, a testator must possess the requisite mental capacity at the time of execution.

§ 301.1 Age

The SCPC requires that a testator be at least eighteen years old to execute a will. The age limitation is inapplicable to testators who are younger than eighteen but married.¹ The 1997 amendments created another exception to the age requirement for those who are emancipated.²

Section 62-2-501. Who may make a will.

An individual who is of sound mind and who is not a minor as defined in Section 62-1-201(27) may make a will.

The age limitation applies at the time of the will's execution. Consequently, a will executed by an unmarried and unemancipated sixteen-year-old putative testator is invalid; it does not become valid when the underage testator reaches eighteen, or gets married, or becomes emancipated.³ Of course, upon marriage, emancipation, or reaching the age of eighteen, the testator can then execute a valid will.⁴

§ 301.2 Mental capacity

The SCPC requires that a testator be of sound mind in order to execute a valid will.⁵ The SCPC does not attempt to specify the factors involved in the determination of the soundness of the testator's mind. Thus, existing South Carolina law with respect to the determination of testamentary capacity should continue to be effective.⁶ South Carolina enjoys a relatively rich body of case law dealing with such matters of testamentary capacity as mental capacity,⁷ undue influence,⁸ monomania or insane delusion (possibly not an independent ground for overturning a will in South Carolina but at least a factor to be considered in the overall determination of testamentary capacity),⁹ fraud,¹⁰ and mistake.¹¹

To possess the requisite mental capacity to make a will, a testator has to have the ability or capacity to know her estate, to know the objects of her bounty, and to understand the nature of her act (making a will).¹² The SCPC generally places the burden of proof in a will contest on a contestant.¹³

Mere eccentricity does not conclusively demonstrate lack of testamentary capacity. Although the notorious case of Lee's Heirs v. Lee's Executor¹⁴ serves as a humorous example of just how strange a competent testator can be, a more modern case demonstrates the difficulty a contestant may have overcoming the effective presumption in favor of a will's validity. In Estate of Weeks,¹⁵ a son brought a guardianship and conservatorship proceeding against his then 81-year-old mother. The mother claimed she owned her home at Folly Beach, although she was actually only a tenant because she had sold the house in 1971. She claimed to own a house in Texas that she had sold previously. She did know that she owned a house in California. She mistakenly testified that her son was a judge—he was not, although he was a lawyer—and her testimony rambled in other ways. She knew her birthdate and age, but thought the present year was 1981, although it was 1989. One court-appointed examiner opined that the mother lacked the capacity to manage her affairs properly. Although she generally understood what she owned, she was confused when describing her property and did not know what it was worth. Even though the examiner thought she suffered from Alzheimer's disease, he believed that she was competent to make a will. The other examiner thought she could make her feelings known about her property, but suggested the appointment of a conservator, with the mother retaining limited control over her property. The probate court appointed the son and one of the mother's two daughters as co-conservators.

The mother deeply resented the son's involvement in the conservatorship proceedings, and five days after the order establishing the conservatorship, she executed a will leaving most of her estate to her two daughters and leaving one dollar to her son. The drafting attorney audiotaped the execution ceremony. She knew the date, but thought the year was 1981. She did not know the name of the President of the United States, but could name her three children. She remained confused about her property, and she could not recall her attorney, although he had twice visited her. She was also confused about the conservatorship proceeding.

She died in 1995, and her will was informally probated in July 1995. The son contested the will, and the daughters, appointed as personal representatives, failed to answer his summons and complaint within 30 days. After the son filed an affidavit of default, the daughters filed an answer. Finding that the SCPC did not require a responsive pleading to a will contest complaint, the probate judge refused the son's motion to hold the daughters in default. Moreover, the judge cited SCPC section 1-102, calling for the liberal construction of the SCPC, as reason to set aside the default for good cause if a technical default existed. The judge ruled that the mother had testamentary capacity. The circuit court affirmed.

The appellate court construed the SCPC as not requiring a responsive pleading to a will contest, although it noted that SCPC section 3-404 does require a will contestant to state the objections in a pleading. The court noted that the SCPC also provided for the application of pertinent rules of civil procedure unless inconsistent with the SCPC. It cited S.C. Code section 14-23-280 for the proposition that a proceeding in probate court may be commenced by a summons and complaint, and that the time for answering should comply with the rules of civil procedure.¹⁶ The court then referred to South Carolina Rules of Civil Procedure (SCRCP) 12(a), which requires a defendant to answer in 30 days, SCRCP 55(a), which provides for a default when a defendant fails to timely answer, SCRCP 55(c), which allows the court to set aside an entry of default for good cause, and SCRCP 60(b), which allows the court to set aside a judgment of default for excusable neglect. The appellate court determined that the lower court did not err in finding that an answer was not mandated, or that good cause existed to excuse the default, if one existed.

The son also contended that the circuit court, as the first appellate court from the probate decision, failed to use the appropriate standard of review, which he claimed was "in the light most favorable to the contestants of the will." The appellate court disagreed, noting that Havird v. Schissell,¹⁷ the case cited by the son, was decided before the SCPC was enacted. In Havird, the circuit court held a de novo hearing, whereas in Weeks, the circuit court sat as the first appellate court because the case was not removed from the probate court under SCPC section 1-302(c).¹⁸ The appellate court cited In re Howard¹⁹ for guidance as to the proper standard of review for the circuit court hearing an appeal from the probate court. Because a will contest is at law, the circuit court hearing an appeal should uphold the trial court "unless there was no evidence to support [the findings]."²⁰ The appellate court ruled that the circuit court applied the proper standard of review.

Finally, the appellate court examined the issue of the mother's testamentary capacity. It described the test for capacity in South Carolina as having the capacity or ability to know her estate, the objects of her affection, and those to whom she wished to leave her property. The appellate court observed that the court's appointment of a conservator did not conclusively prevent a determination that the mother maintained testamentary capacity, as confirmed by SCPC section 5-408(4). The probate court ruled that she suffered only "partial incapacity." Moreover, SCPC section 3-407 places the burden of proof on the will contestant. The appellate court also observed that the degree of capacity necessary to make a valid will is less than that needed to enter into a binding contract.

The appellate court determined that the mother possessed the requisite degree of testamentary capacity. It recognized that she made erroneous statements concerning her estate, but that there was "absolutely no evidence in the record that she was insane or suffered any sort of mental illness; rather, she was an 81-year-old woman experiencing a gradual, but irreversible decline in her mental faculties due to the effects of aging."²¹ The appellate court cited the examiner who opined that she was capable of making a will.

Weeks addressed some issues much-debated among South Carolina probate lawyers about proper pleading in the probate court. Such questions include whether an action must be commenced with a summons, whether the contestant's pleading in a will contest must be in writing, and which rules of civil procedure apply because they are not inconsistent with the SCPC. Although the appellate court discussed these pleading issues, it failed to provide definitive answers to the questions.²² The appellate court essentially found that the lower courts did not err without giving reasons and without answering the questions.

Another interesting issue in Weeks is the statement in the opinion that the mother left her son one dollar in order to "prevent him from contesting the will."²³ Because the opinion did not expand on this statement, it is not clear whether the appellate court offered this as evidence that questioned her capacity or whether the court accepted her reasoning as valid. Of course, a provision in a will that threatens a potential contestant with the loss of one dollar if he contests the will is hardly intimidating to the potential contestant. It is doubtful the son spent much time worrying about forfeiting the dollar if he actually contested the will. In any event, SCPC section 3-905 provides that a no-contest clause is enforceable unless probable cause to contest exists.²⁴

The appellate court, however, did correct a misperception about Havird, sometimes cited for the proposition that the court must view the evidence in the light most favorable to the contestant. Havird dealt with...