Berk & Moskowitz, P.C.

In order to set aside a Will on the ground of testamentary incapacity, the contestant (person attacking or trying to set-aside the Will) is required to show that the Will was a product of permanent insanity or insane delusions that rendered the testator unable to have known and understood the nature of the document, the nature and extent of his/her property, and the natural objects of his/her bounty at the time that the Will was executed.

Not every mental departure from normal will destroy a testamentary disposition that is otherwise valid. Thus, even assuming that the testator was suffering from a deteriorating mental condition, or that his/her old age was accompanied by physical infirmities, poor memory or mental slowness (i.e. mild underlying dementia), this is generally not legally sufficient to show lack of testamentary capacity. For example, in Estate of Green, the Arizona Supreme Court explained the nature of the mental condition necessary for testamentary incapacity as follows:

Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) [i]nsanity of such broad character as to establish mental incompetency generally; or (2) some specific narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim so some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion . . .

In subsequent cases, the Arizona courts have further explained the standard by holding that a testator has sufficient testamentary capacity if he is merely capable of: (1) understanding that the instrument disposes of his property at death; (2) knowing the general nature and character of his property; and (3) knowing the natural objects of his bounty (i.e. the family members that logically would inherit his property) and understands the relationship to them.

While the foregoing standards appear high, it is not impossible to set-aside a Will based on lack of testamentary capacity.  Our Arizona probate lawyers will work with medical professionals, such as neuropsychologists, to review medical records and perform psychological examinations in order to determine whether the testator lacks or lacked testamentary capacity.  Please give our agressive probate attornesy a call if you think that a Will or codicil (an amendment to a Will) or trust or other transfer was signed when the person lacked testamentary capacity.