Competency to Make a Will or a Trust

Do you have a parent who has made a will or trust? Have they recently been diagnosed with alzheimers or dementia? Do you have siblings who will argue the fact that your parent is competent to make a will or trust? There is a case cited below that talks about a gentleman who passed away that wasn’t competent when he created his will.

Revocable Trust avoids probate


1. EXAMPLE FROM In re Wadsworth Estate, 1954 OK 213, 273 P.2d 997.

 The will contestants (three of his children who were left $1 each) objected to the will offered for probate by another son and his widow.

 The Testator had been adjudged to be mentally incompetent several years before making his will.

 A doctor testified that the Testator was of limited intelligence but not incompetent. But not able to transact his own business without assistance. Admitted that the Testator would know his property, know his heirs, his relationship with them and the things in which he was chiefly interested. But that he was easily influenced by others.

 A neighbor testified that the Testator was not of normal intelligence, but weak minded. That anyone could be nice to him and buy from him at a fraction of the true value. That he was a good farm hand but had to be told what to do. He admitted that the Testator knew what property he owned, knew who he wanted to have it, and was likely to have left it to anyone whom he was pleased at the moment.

 A second neighbor testified that the Testator was not of normal mentality but was not feeble-minded. That he was easily influenced. That he needed help when transacting business. That people he liked could get him to do things he should not do. He admitted that he would know how many head of cattle he had, would know his farm machinery, knew who were his children, his wife and his heirs. That if he went to a lawyer’s office and told the lawyer to draw up his will that he would know what he was doing.
 A lawyer testified who turned down making the Testator’s will for the reason that he was concerned that undue influence had been exerted by the son.

 The registered nurse who had taken care of the Testator for 45 days during his last illness that she thought he was of below average intelligence, but that he had sufficient mental capacity to know and understand and carry in mind in a general way what property he had, who his relatives were, and what he would want done with his property at his death.

 The Testator’s family doctor who attended his for several weeks during his last illness that he had examined the Testator for the purpose of determining his mental capacity and gave his opinion that he had sufficient mental capacity to know and understand and carry in mind in a general way the nature and situation of his property, his relation to those naturally having some claim to his remembrance. The doctor thought that the Testator was feeble-minded but disagreed that he was easily influenced. He testified that the Testator asked him, “Doctor, do you think that I am crazy?” and also, “Do you think I am able to leave my property to Roland?”

 The widow testified that the youngest son (Roland) was the only child who had helped them.

 At ¶21-22 the Supreme Court found that the children had been taken away from the Testator and his wife and raised by others. That the Testator and his wife were of little education, low intelligence and easily influenced. That the Testator and his wife lived in squalor repulsive to the children. That one child, the youngest child, had remained at or near his parents, and had helped his parents as they aged. The Supreme Court held that the will was not an unnatural disposition under the circumstances. (Emphasis added.)

 At ¶23 the Supreme Court believed that the testimony of the family doctor relating the conversation he had with the Testator about leaving his estate to his youngest son, Roland, indicated intelligence.

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 The Supreme Court held:

 ¶24 That the ability to transact business is not the true test of testamentary capacity.

 ¶¶25-26 That the testimony by the witnesses for the contestants proved that the testator was a man of low mentality and could have been easily influenced, but reversed the trial court and directed that the will be admitted

This case is basically stating that everyone thought he was of low intelligence which made him not competent. Attorneys turned him down since attorneys can get in trouble if they were to do a will for someone that was not competent. The reason for that is because the family of the individual could say that the attorney influenced their loved one to make the will and they didn’t fully understand what they were signing at the time.
After this individual in the above cited case passed away the family took the case to Court because his son didn’t think he was not competent. The Supreme Court overturned that he was incompetent because they found out that he was just of lower education which made him seem like he was incompetent.
Of course using an experienced probate, will, trust and estate attorney for your will, trust or other planning pays off. The experienced attorney will know what questions to ask in order to protect your wishes. You want your wishes carried out and honored by the court system. Use an experienced attorney for legal advice on whether or not or how to omit a child or grandchild from you will or trust, or both, then you need to contact attorney Brent D. Coldiron. Brent is located at 1800 E. Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City, OK 73110; telephone (405) 478-5655 and 737-2244. Brent has over 42 years experience handling a variety of legal matters, including probates, wills, trusts, business formation, elder law, Medicaid qualification for nursing home care, protection from nursing home spend down, limited liability company and corporation formation, and guardianships. Give Brent a call, he knows what to do!