FACTORS AFFECTING COMPETENCY WILL TRUST

Although every person is presumed to be competent to make a will or trust, these factors may affect will trust competency.

Illness or Debility Can Affect Capacity- does the sickness impair the mind so that mental ability is lacking to understand the nature and consequences of making the will. Brown v. Brown, 1955 OK 240, 287 P.2d 913 3 at ¶0 Syllabus, “3. Evidence of a testator’s ailing or weakened physical condition is not proof in itself of his testamentary incapacity; in order to constitute such proof, said condition must be shown to have rendered him incapable of understanding the nature and consequences of his acts at the time he made the will…’

Intoxication and Drug Usage Can Affect Will Trust Capacity- an individual must have capacity at time the Will is signed – not be temporarily impaired – drunkenness. Matter of Estate of Lambe, 1985 OK CIV App 38, 710 P.2d 772 ¶5 The standards by which the testamentary capacity of an individual affected by drugs or alcohol are to be judged were set forth by the supreme court of this state in In re Anderson’s Estate, 142 Okla. 197, 200, 286 P. 17, 20 (1929) (quoting Page on Wills § 159 (2d ed.)): “The general principles of testamentary capacity apply in cases where the testator is affected by the use of alcohol or drugs. In such case a person may have the capacity which the law requires for making a will, if, in spite of the use of alcohol or drugs, he has sufficient mind and memory to understand the nature and extent of his property, the proper objects of his bounty and the nature of the testamentary act. . . .As in other cases, the question to be determined is solely that of the capacity of the testator at the time of making his will. The fact that he was habitually intoxicated or under the influence of drugs does not render his will invalid, if he had the requisite understanding at the time that he made it.”

Old Age is Not Enough to Invalidate a Will Trust- Dunkin v. Rice, 1946 OK 163, 169 P2d 210 at ¶7 It is aptly pointed out that mere advanced age or physical infirmity does not render one incapable of making wills or entering into contracts of conveyance. The mental faculties must be so reduced that the afflicted individual is incapable of understanding the nature and effect of the transaction at the time the questioned instrument was executed, to warrant cancellation…”

Senile Dementia Not Sufficient by Itself affect will trust – does the testator have capacity – fact the testator has the disease alone is not enough. In re Williams Estate, 1952 OK 283, 249 P.2d 94 at ¶11, “While contestants contend that the evidence conclusively establishes that testator was suffering from senile dementia and that disease rendered him mentally incompetent to make a will, we held in Re Mason’s Estate, 185 Okla. 278, 91 P.2d 657, and again in Re Wheeling’s Estate, 198 Okla. 81, 175 P.2d 317, that the fact that the testator was suffering from senile dementia was not in itself sufficient to invalidate the will. In each of these cases we said: ‘To defeat a will on ground that a testator lacked testamentary capacity, it is not sufficient merely to establish that the testator was a victim of some delusion, but the evidence must go further and establish that the will itself was the product of that delusion and that the testator devised his property in a way which, except for that delusion, he would not have done.’”

Insane Delusions (a false belief) can affect will trust – one adhered to against all evidence, argument and reason. Winn v. Dolezal, 1960 OK 165, 355 P.2d 859 the court stated at ¶6 “…The essence of an insane delusion is that it has no basis in reason, cannot be dispelled by reason and can be accounted for only as the product of mental disorder…An insane delusion, within the rule invalidating will, denotes a false belief, which would be incredible in the same circumstance to victim thereof were he of sound mind and from which he cannot be dissuaded by any evidence or argument.” At ¶7, “Where a belief, religious or otherwise, is a creation purely of the imagination, it may be evidence of, or constitute, an insane delusion, but where it is based upon evidence and arrived at through a process of reasoning, though such reasoning may be regarded by the majority of other persons as faulty and illogical, yet, if it is not so contrary to reason that none but a person of unsound mind could entertain it, it is not such a delusion as may be deemed an `insane delusion’; and though a testator’s practical disinheritance of some of his children may have been prompted or brought about by such a belief, such fact, in itself, and without evidence of mental derangement or unbalance in other phases of life or demeanor will not invalidate the will.” For example, an 85 year old testator stated in his Will, “My children have failed and refused to care for me.” Actually his sons spent many years in his service. Insane delusion was not raised, but the will seems to have been the product of an insane delusion, as well as general lack of capacity. The will was attacked on grounds of lack of testamentary capacity, undue influence and confidential relationship. In re Thompson’s Estate, 1953 OK 252, 261 P.2d 577 observed that the testator was at an advanced age (85), that he was mentally and physically a sick man, he had an unsettled state of mind by describing hsi will as a mistake. At ¶22 stating, “It seems inconceivable that the testator, if competent, would disinherit his son Harry, who had practically spent his entire life on the farm doing the major part or portion of the farm work; and after his mother’s death, caring for his father’s needs. Mr. Thompson’s denunciation of his sons discloses a harsh and unreasonable judgment of their character. In his will he says: ‘My children have failed and refused to care for me.’ Quite to the contrary the evidence discloses that his sons spent many years of their mature manhood in the service of their father, and their filial obedience is abundantly established by the record. Characteristic of advancing age his physical condition grew progressively impaired resulting in brain changes, changes of the mind, memory and attitudes indicating symptoms of dementia.”

Unjust or Unnatural Disposition. In Re Estate of Lacy, 1967 OK 123, at ¶29 The will of the testator was an unnatural will. He left the bulk of his estate to one child, Agnes Mielke, to the exclusion of his seven other children. While not conclusive, an unnatural disposition of property by the testator may be considered in determining his testamentary capacity…The fact that the will is unjust or unnatural does not of itself establish testamentary incapacity, but it is a circumstance which may be considered in connection with other evidence, and which may have weight in determining the capacity of the testator; and an unnatural or unjust disposition coupled with other evidence indicating incapacity may justify a verdict against the will.”

The area of will trust competency to make a will or trust can be affected by many factors.   Some of those are mentioned here.  That is why experience pays off.  Brent is careful to document the capacity of his clients when he makes a will or trust for them.  His 42 years of experience pays off big for his clients.  If you have a question about a will or trust, call Brent at (405) 478-5655 or 737-2244.  Brent has offices at 1800 East Memorial Road, Suite 106, Oklahoma City, OK 73131 and 2801 Parklawn Drive, Suite 503, Midwest City.