Chapter A. Testamentary Capacity

• Jurisdiction: Washington

A. TESTAMENTARY CAPACITY

A.1. Age

Current Washington law, adopted in 1970, requires that a person be at least 18 years of age to have capacity to make a will.¹ The statute specifically includes as valid all wills that meet its requirements ("sound mind" and attaining 18 years of age) and that were executed subsequent to September 16,1940. For wills executed prior to September 16, 1940, presumably the law in effect at the date of execution will prevail. Between 1881 and 1940, Washington law required that the testator have attained majority, which was then 21 years of age.²

A.2. Status

Washington law does not require nor prohibit any particular status to execute a will, except to require sanity and attainment of majority. Thus the old common-law incapacities that were attached to convicts, aliens, or married women³ do not apply.

Although American Indians are not lacking in testamentary capacity, the law applicable to them may be very different from that applying to non-Indians. See Chapter 11 for a detailed discussion.

A.3. Mental Capacity

A.3.a. Mental Deficiency

The most common form of mental incapacity found in will contests is simple mental deficiency: a lack of capacity to understand the nature and consequences of the testamentary act. The test applied

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by the Washington courts has been stated often, and usually in similar terms:

[A] person is possessed of testamentary capacity if at the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to comprehend generally the nature and extent of the property which constitutes his estate and of which he is contemplating disposition, and to recollect the objects of his bounty⁴

It should be kept in mind that this test, which is fairly universal in application in American jurisdictions,⁵ does not generally require proof that the testator did in fact recall or comprehend all of his or her property, or recall all family members, but only that the testator was able (had "sufficient mind and memory") to understand and recall.⁶

The fact patterns that most commonly provide evidence of the three elements set out in the above test (comprehension of the transaction and recollection of the testator's property and the objects of the testator's bounty) concern either the testator's mental or physical state, or actions, or the contents of the will. The court must rely on such sources of circumstantial evidence of the testator's ability to comprehend and recall, because there will not always be direct evidence of that ability. Usually it will be from some combination of circumstantial factors, and not from one alone, that the court draws its conclusion.

A.3.a.(1) The Testator's Mental or Physical Condition

(a) Mental Condition. As a general rule, no particular mental characteristic or state of mind is required of a testator, as long as the testator's condition is not such as to preclude meeting the "comprehension and recollection" test. Thus it is not an indication of testamentary incapacity that a testator is eccentric, and that her

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neighbors avoid contact with her.⁷ Nor is belief in spiritualism or other unconventional religious dogma, together with such outward manifestations of those beliefs as holding conversations with (or even setting places at the table for) the spirits of deceased relatives, such an indication.⁸ In themselves, "belief[s] can never be made a test of sanity."⁹ Of course, if religious beliefs reach the point of an insane delusion that "produces a will which is wholly a result of them," the testator may lack testamentary capacity¹⁰ But failing this, the law "takes no account of a man's religion. It cannot say that, because one man believes in the generally accepted dogmas he is sane, and another is insane because he rejects them and announces some new doctrine that may shock the sensibilities or disturb the religious fervor of some devout believer in the so-called orthodox faith."¹¹

Other eccentricities our courts have seen fit to ignore as being irrelevant on the issue of mental capacity include, for example, a belief that the testator's food was being poisoned or her property stolen while she was in the hospital;¹² talking or laughing to one's self;¹³ and objectionable or repulsive personal habits.¹⁴ Similarly, the testator's immorality, misanthropy, miserliness, or violent nature do not constitute mental incompetence.¹⁵ "[T]here is a decided difference between eccentricity, mental peculiarities, misapprehensions, temporary or partial hallucinations on the one hand, and testamentary capacity on the other."¹⁶

Also considered irrelevant in determining mental capacity is the level of intelligence or education of the testator. Thus an inability to read or write English (even if the will was written in that language),¹⁷ or a combination of a lack of business experience, an inability to cook or otherwise keep up a house, and other indications of lack of intellectual ability or worldly sophistication¹⁸ will not invalidate

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a will. Put another way, "one does not have to be a literarian, a financial genius, an athlete, or an expert cook in order to qualify as possessing capacity to make a will."¹⁹ In fact, the court has noted the danger that a judge or jury will believe that too high an intellectual standard is required, when in fact very little is needed in the way of intelligence, intellectual capacity, or soundness of mind.²⁰

From these various examples it can be seen that matters concerning one's personality or character, rather than mental faculties, are of no real consequence in determining testamentary capacity; and facts that address one's education, intelligence, or social sophistication may indicate the ability to make an intelligent or sophisticated disposition of one's estate, but not the ability to make a valid will—to understand the transaction, comprehend one's property, and recall the natural objects of one's bounty. No more is required.

Of course, loss of memory is a crucial factor when the test of capacity concerns the ability to recollect one's property and close relations. Direct evidence of an inability to recall those elements will nullify the will;²¹ but evidence of a poor memory in general will not.²² Clearly one can be "occasionally forgetful or confused" and still be competent.²³

Frequently raised as an indication of mental incapacity is a formal adjudication of incompetence, in the form of commitment to a mental institution or appointment of a guardian of the testator's person and/or estate. It is clear that such an adjudication does not in itself constitute proof of incapacity to make a will.²⁴ This is especially

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true of the appointment of a guardian of the testator's estate only, and not of the person:²⁵

[T]he fact that a guardian has been appointed to conserve the estate of one adjudged incompetent to manage it herself does not necessarily tend to establish lack of capacity on the ward's part to execute a will (whether the adjudication of incompetency precedes or follows the execution of the will), unless the order appointing the guardian is based upon an express finding of some mental defect inconsistent with the possession of the capacity required for the execution of a will. The appointment of such a guardian is not an adjudication that the ward is insane , nor does it in all cases imply that the ward is not fully capable of making a valid testamentary disposition of his property . A person may indeed be incapable of managing and conserving a large estate and yet be perfectly able to understand the nature of a will, to comprehend the extent of his property, and to recall the natural objects of his bounty. In short, he may require a guardian to supervise his estate and yet be competent to make a valid will disposing of it upon his death.²⁶

On the other hand, an adjudication of insanity or a similar decree may have the effect of shifting the burden of proof to the will's proponent:

If a condition of general insanity, which is not of a temporary kind, is once shown to exist, its continuance is presumed and the burden of overcoming such presumption by proving mental restoration or a lucid interval, rests upon him who asserts such facts. If the proof of insanity existing before the will is executed consists of an adjudication of insanity, or a decree declaring the person to be non compos mentis and placing him under guardianship, the presumption is that such person is incompetent to make a will; and the burden is upon the proponent of the will to overcome such presumption, by proving restoration of sanity of the testator or that, at the time of executing the will, the testator had a lucid interval, or that the delusion upon which the adjudication of insanity was based did not affect the will.²⁷

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In effect, the court will look at the particular adjudication and the evidence and findings that led to it and decide whether it warrants such a shift of the burden of proof, or indeed warrants any credence at all. For this reason, it can be extremely important that the court have access not only to the ultimate findings of the adjudication proceeding, but also to a transcript of the hearing, so that it might determine the true import of the adjudication.

For example, in In re Bottger's Estate,²⁸ the order appointing a guardian recited that the testator had voluntarily consented to the appointment and that she lacked business experience and could not read or write English, but it did not mention her mental competence or otherwise provide any basis for a presumption of lack of mental capacity. (In fact, the adjudication had been a compromise settlement of what was to have been a contested proceeding.)²⁹ And in In re Miller's Estate,³⁰ it was clear that the testator was hospitalized and a guardian appointed only because of her...