When is someone too far gone to make a will or trust? This information may help you understand the law as it relates to will trust competency.
Eder Law Attorney Brent D. Coldiron knows how to prepare your estate so that your wishes are carried out. You can trust him. Brent has drafted hundreds of wills and living trusts. Brent knows what to do!
Definition of Will Trust Competency to Make a Will or Trust. In Re Martin’s Estate, 1948 OK 9, 188 P.2d 862, “A person has testamentary capacity when his mind and memory are such that he knows, in a general way, the character and extent of his property, understands his relationship to the objects of his bounty and to those who ought to be in his mind on the occasion of making a will, and comprehends the nature and effect of the testamentary act.”
Presumption of Will Trust Competency. Every person is presumed to have enough capacity to make a will. The burden is upon the will contestant to rebut the presumption. In re Estate of Tayrien, 1926 OK 409, 246 P. 400, at ¶14, “A presumption of sanity goes with every one, and the burden of proving unsoundness of mind in a will contest rests upon the contestant…”
Wills and Presumably Trusts Carry a Lesser Test of Will Trust Competency than the Ability to Transact Business or Contract Capacity- contract capacity, cashing checks, making purchases, sales, make contracts, manage property – is some proof of capacity or the lack of capacity, but is not conclusive concerning the capacity to make a will. In re Estate of Tayrien, supra, at ¶15 “The ability to transact business is not a true test of testamentary capacity. The testator may have capacity to make a will, although not able to make contracts or manage his estate. He may not have sufficient mind and vigor of intellect to transact business generally, and to make and digest all the parts of a contract, and yet be competent to direct the disposition of his property by will. The question is whether the testator’s mind is sufficiently sound to enable him to understand the business in which he is engaged at the time of the execution of the will, and to bear in mind the property which he bequeaths to the objects of his bounty, and to know its scheme and distribution.” and at ¶16 “But the question of his mental capacity is not whether or not the powers of his mind were impaired, or whether or not he had ordinary capacity to do business, but whether or not he had any–the smallest–capacity to understand what he was doing, and to determine intelligently whether or not he would do it. * * * Any other test would wrest from the feeble and the aged that power over their earnings and savings which is their best safeguard against misfortune, and would produce endless uncertainty, difficulty, and litigation.”
In the Matter of the Estate of Wadsworth, 1954 OK 213, 273 P.2d 997, the testator was of low intelligence. The court held, “… It is sufficient if the testator can understand and carry in mind in a general way the nature and situation of his property and his relations to those who naturally have some claim to his remembrance and those in whom and the things in which he has been chiefly interested… The ability to transact business is not the true test of testamentary capacity…”
Eder Law Attorney Brent D. Coldiron knows how to prepare your estate so that your wishes are carried out. You can trust him. Brent has drafted hundreds of wills and trusts. Brent knows what to do!
Brent D. Coldiron is an elder law attorney who has over 42 years experience. If you have a need for a will or a trust, call Brent at (405) 478-5655 or 737-2244. His offices are located at 1800 East Memorial Road, Suite 106, Oklahoma City, OK 73131 or 2801 Parklawn Drive, Suite 503, Midwest City. Give Brent a call. He knows what to do!