HomeProbateOklahoma’s Presumption of Legal Competency

Any person who makes a will in Oklahoma is legally presumed to have been legally competent to make the will.




The will stated as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being $ 1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name, this 17th day of April, A. D. 1920.

“Emanuel J. Kerchner, Testator.

“Signed. Published and Declared, by the said Emanuel J. Kerchner as his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto; and at the time we know the said Emanuel J. Kerchner to be of sound and disposing mind and memory.

“Witness Our Hands, the day and date above given.

“Z. H. Tibbetts,

“W. H. Harris,


Photograph of Old Faithful.


The question before the probate court was the maker of the will at the time he executed his last will and testament competent to make the will?

The probate court considered the habit and capacity of the will maker to actively transact his ordinary business and make his own contracts.  The appellant court determined that the actual time and place to be when the will was signed was the point in time in which a will maker must be competent.

The opinion of the will maker’s doctor as to his mental condition would be considered by the court.

The probate court said that legal competency to make a will consisted of the following:

“The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapse of memory, mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.  It is a general rule that testamentary capacity consists in the ability to understand the nature of his property, the natural objects of his bounty, and the nature of the testamentary act, and it is sometimes said that it is sufficient if he knows of what his estate consists and the persons to whom he desires to give it.  This rule does not mean that all these things must be known by the testator minutely, but if he knows them in a general way, this is enough. ”


The probate court is not to hold being old against anyone who makes a will.  The mere fact that a person is aged person in no way operates against the validity of the will.

A will going to probate carries this strong presumption.  There is a presumption of sanity that the person who made the will was legally competent.  It is for everyone who makes a will.  The burden of proving unsoundness of mind in a will contest rests on the contestant.


The court held: An examination of all the testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions.

Photo of Brent D. Coldiron

Brent’s Photo with his Juris Doctorate from the OU School of Law. Brent has practiced law since 1976. You can count on his experience to protect you!


Brent Coldiron practices law at 1800 East Memorial Road, Suite 106 in Edmond/Oklahoma City and 2801 Parklawn Drive, Suite 503 in Midwest City.  Brent can be reached at (405) 478-5655 or 737-2244.


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