The Subject of a Guardianship is Entitled to Make a Will Under Guardianship. The will of a ward under a guardianship will be valid if the ward meets the general requirements for testamentary capacity. Toombs v. Matthesen, 1952 OK 89, 241 P.2d 937 a guardian had been appointed for the testator. Matthesen at ¶8, “An adjudication of a testator’s mental incapacity to manage his property is to be considered in the determination of his testamentary capacity, but such evidence is not conclusive proof thereof.” Matthesen at ¶10, “This court has frequently held that a testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relation to the persons around him, to those who naturally have some claim to his remembrance, and to those in whom and things in which he has been chiefly interested, and that he must understand the act which he is doing and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will. . . .The question of mental capacity to make a will is a question of fact, and is to be determined from the condition of the testator’s mind at the time of the making of the will; and in determining the mental status of the testator the presumption of sanity will be indulged; and where a will appears to be a rational act performed in a rational manner, such presumption and such apparently rational act amounts to evidence of testamentary capacity; and in determining the mental status of a testator in a will contest, the question to determine is, `Did the testator possess testamentary capacity at the time of the making of the will?’ Prior and subsequent acts have bearing only to the extent of helping to determine the mental status at the time of the execution of the will.” There are special signing requirements for a ward subject to a guardianship. 84 O.S. § 41B. A will under guardianship is not that much different from other wills. A will under guardianship must be signed by and in front of the judge is the primary difference.
Brent D. Coldiron is experienced in the area of guardianship. If you have a guardianship question 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.