Testamentary Capacity (Mental Competency and Insane Delusion)

• Author: Browne C. Lewis
• Pages: 409-437

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Chapter Nine: Testamentary Capacity (Mental Competency and Insane

Delusion)

9.1. Introduction

A probate attorney has two key roles: (1) to execute a will that carries out the testator’s intent

and (2) to create a will that is challenge-proof. Persons seeking to contest the probate of a will

usually take two avenues—they challenge the testator’s capacity to execute the will and/or they

challenge the validity of the execution process. This chapter and Chapter 10 examine the ways in

which the testator’s ability to execute a legally enforceable will may be called into question. The cases

in this chapter deal with the manner in which some defect in the testator may prevent him or her

from being capable of executing a valid will. The cases in chapter 10 focus upon the way that the

actions of other people may interfere with the testator’s ability to execute a valid will. Chapter 11

and Chapter 12 discuss will contests based upon the testator’s failure to follow the execution

process.

According to the law in all states, in order to execute a will, a person mus t be at least 18

years old and of sound mind. The statutes do not include a definition of what it means for a person

to be “of sound mind.” When evaluating the soundness of a person’s mind, lay persons think in

psychological terms. For example, if a person has been diagnosed with some type of mental illness,

the average person would say that person is not “of sound mind.” However, a mentally ill person

may be legally competent to execute a will.

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The level of mental competence necessary to execute a

will is very low compared to what is required to undertake other legal actions like executing a

contract, obtaining a marriage license or executing a deed to transfer title to a piece of property.

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The attorney who prepares the will and assists in the execution process has a duty to

determine whether or not his or her client is legally “of sound mind.” Most attorneys have not been

trained to make psychological evaluations. Thus, in order to determine if a client has testamentary

capacity, an attorney must rely on the guidelines provided by the courts. In order to be deemed to

have testamentary capacity, at the time that the will is executed, the testator must know the

following: (1) the nature and extent of his or her property; (2) the persons who are the natural

objects of his or her body; (3) the disposition he or she is making; and (4) the manner in which these

facts related so far as to form an orderly plan for the disposition of his or her property. The attorney

should take steps during the initial client interview to determine if his or her client can satisfy the

testamentary capacity test.

Once an attorney concludes that his or her client can satisfy the mental capacity test, that

may not be the end of the story. The client may do or say something to lead the attorney to believe

that the client is suffering from a misconception that could hamper his or her ability to cre ate a will.

The insane delusion test is a two part test. The court first has to decide whether or not the testator

was suffering from an insane delusion when the will was executed. Then, the court has to determine

whether the dispositions the person made were a result of that delusion.

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A delusion is insane even

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Matter of Gentry’s Estate, 573 P.2d 322 (Or. App. 1978); Briggs v. Kreutztrager, 433 S.W .3d 355 (Ky. App. 2014).

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Denson v. Moses, 2 So. 3d 847 (Ala. App. 2008).

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Breeden v. Stone, 992 P.2d 1167, 1171 (Colo. 2000).

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if there is some factual basis for the belief if a reasonable person in the testator’s situation would not

have drawn the conclusion reached by the testator. An insane delusion is different from a mistaken

belief. An insane delusion is a belief not susceptible to correction by presenting the testator with

evidence indicating the falsity of the belief. In this situation, a testator will refuse to believe the

evidence that shows that he or she is wrong.

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Consider this example. T believes that all cats are

black. T’s daughter shows him a white cat. T responds by telling his daughter that the animal she

showed him could not be a cat because it is not black. On the other hand, a belief is a mistake if it is

susceptible to correction if the testator is told the truth. Thus, if the testator’s had responded to his

daughter’s actions by saying something like, “I never knew that white cats existed. Now I do.”

As the next few cases illustrate, contestants seldom rely on testamentary capacity alone when

seeking to have a will invalidated. This is the case because it is almost impossible to prove that a

testator failed to meet the minimum capacity requirement. Thus, the argument is usually that the

person’s testamentary capacity was adversely impacted by other factors including insane delusion,

fraud and undue influence.

9.2 Testamentary Capacity

In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005)

HAWTHORNE, J.

In this formal testacy proceeding as to the estate of Robert Ramon Romero (decedent), decedent’s

children, Barbara A. Romero and Robert Ross Romero (contestants), appeal the probate court’s

judgment denying their petition for adjudication of intestacy. Decedent’s sister, Dolores G. Vasquez,

as devisee, opposed the petition. We affirm.

This case involves a contested probate of a formal will executed by decedent. The will named

decedent’s mother as personal representative and his sister as the successor personal representative.

Decedent devised a gift of $500 to each of his children and left the remainder of his estate to his

mother and sister in equal shares, with a provision that if either his mother or sister predeceased

him, the remaining beneficiary would take the entire remainder. Because decedent’s mother

predeceased him, his sister was left as the sole beneficiary of the residuary estate.

Contestants filed objections, claiming that decedent did not have the testamentary capacity to

execute a will. In support of their assertions, they relied primarily on the uncontested facts that

decedent suffered from mental illness and that he had been a protected person under a Veterans

Administration (VA) guardianship over his financial affairs.

A hearing was held on the petition for formal probate. Contestants presented, inter alia, expert

witness testimony from the physician who treated decedent for schizophrenia. While this physician

testified that decedent suffered from auditory hallucinations, the physician was unable to connect

them with execution of decedent’s will and, moreover, saw decedent for only a few minutes on three

occasions during the eighteen months prior to the signing of the will. The probate court accordingly

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In re Millar’s Estate, 207 P.2d 483, 487 (Kan. 1949).