DEVISE CAPACITY: Legal Demand of a Sound Mind and Proper Faculty to Make a Bequest by Adeyemi Oshunrinade


In the United States, the testator must be at least 18yrs old to be able to make a will. There are many factors which may prevent the testator from being able to form the intention to make a devise; Incapacity, fraud and undue influence are among the factors the court may consider to determine whether or not it is proper to admit a will to probate. Other factors such as duress or menace also determine the validity of a will; these factors are equitable overrides and the courts of equity will invalidate a will that is otherwise valid if one of these factors is present.

To make a will, the testator must be capable of knowing and understanding (a) the nature and extent of his or her property (b) the natural objects of his or her bounty, and (c) the disposition that he or she is making of that property, and must also be capable of (d) relating these elements to one another and forming an orderly desire regarding the disposition of the property. (See Restatement (third) of Property: Wills and other Donative Transfers § 8.1 (2003)).

The testator must be able to establish that he or she is of a sound mind and under no mental disability or delusion that may prevent him from satisfying the four requirements indicated above. Mental incapacity sufficient enough to invalidate a will may be of two forms: (1) insanity of the magnitude that establishes mental incompetence or (2) some specific form of insanity under which the testator is suffering from such as hallucination or delusion.

To establish delusion, it must be shown by evidence that the devise itself was a product of such delusion, that the delusion indeed influenced the creation of the will and that but for the delusion, the testator would not have devised his property the way he did. (See Estate of Wright, 7 Cal. 2d 345 60 P.2d 434 [1936]).

If George believes his wife is secretly dating an alien from outer space and as a result decides to disinherit her in his will, his wife may contest the will and the portion of the will disinheriting her is set aside and thus, fail for lack of testamentary capacity; it is a product of insane delusion and will not stand in the face of the law.

One may have sufficient capacity to make a will but still suffering from an insane delusion. If the entire provision in the will was caused by insane delusion, the entire will fails however, if insane delusions are proven but they do not affect the devises, then the entire will stands. Simply put, a delusion is a false conception of reality.

To establish insane delusion as basis for contest, the evidence must show that the will itself was the creation or product of such delusion, that the delusion bore upon and influenced the creation and terms of the will and that the testator devised his property in a way which, except for the existence of such delusion, he would not have done so.

The general rule is that, a delusion is insane even if there is some factual basis for it if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator. (See IN RE STRITTMATER, 140 N.J. Eq. 94, 53 A.2d 205 [1947])

Undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another’s objective. For example, consent to a contract, transaction, relationship, or conduct is voidable if the consent is obtained through undue influence. Likewise, a testamentary disposition is voidable in the eye of the law and may be set aside if obtained by undue influence.

Normally, when a beneficiary actively procures the execution of a will, a presumption of undue influence may be raised, based on the confidential relationship between the influencer (beneficiary) and the testator. To qualify as undue influence, there must be coercion (force). It is only when the will of the testator is coerced into doing that which he or she does not intend to do, that it is undue influence.

If John who desperately wants his brother’s brown Mercedes forces his brother to name him as the beneficiary of the Mercedes in his will and evidence show his brother intended to name his own son Luke as the beneficiary of the Mercedes, but decided instead to name John as the beneficiary due to the pressure and force exerted by John, Luke may contest the portion of the will devising the Mercedes to John as a creation of undue influence.

To establish undue influence it must be proved {1} that the testator was susceptible to undue influence, {2) that the influencer had the disposition or motive to exercise undue influence, {3} that the influencer had the opportunity to exercise undue influence, and {4} that the disposition is the product of the undue influence. (Read Lipper v. Weslow, 369 S.W.2d 698 [1963])

Assuming A son of B held a gun at B and threatened to kill him unless he makes a will bequeathing all his belongings to A, should such a will be admitted to probate? The answer is no because the will is a product of duress and was obtained by such means that does not demonstrate B’s intent. When undue influence becomes extensively coercive it becomes duress.

According to the Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(c) (2003), “A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.” Through the use of force, the wrongdoer intentionally substitutes the donor’s will for his own, and since the will no longer demonstrates donor’s intent, it must not be allowed to stand and thus, void as a product of force.

However, the contestant must be able to show that force was indeed used and that ‘but for’ the duress, the donor would not have transferred his property the way he did. (For more read LATHAM v. FATHER DIVINE, 299 N.Y. 22, 85 N.E.2d 168, 11 A.L.R.2d 802 [1949]).

Assuming a beneficiary makes changes to your will which you never authorized and as a result, gets what you never intended to give; after your death, the portion of the will changed is void and may be subject to contest by interested parties as a product of fraud this is known as (fraud in the execution).

Fraud can also be a willfully false material statement of fact made by the heir or will beneficiary with the intention of deceiving the decedent, which in-fact deceived the decedent, and cause the decedent to write or change (or refrain from writing or changing) a will in reliance upon such statement; this is (fraud in the inducement).

In other words, Fraud in the inducement occurs when a person misrepresents facts, so as to cause the testator to execute a will, to include particular devises in the wrong-doer’s favor, or to refrain from executing or revoking a will. Fraud in the execution is when a person misrepresents the character or contents of the instrument signed by the testator to create a diversion from the testator’s intent.

In determining whether the will is obtained by fraud, two questions are raised (1) whether the bequest would have been made “but for” this fraud and (2) whether the fraud was the sole motive for the gift. Partial invalidity is also possible due to undue influence or a delusion as discussed earlier. Generally, the entire devise fails for improper execution (will formalities), lack of intent or a generalized mental (or age) incapacity is among the factors that can invalidate a bequest. (See PUCKETT v. KRIDA, S.W.2d, 1994 W.L. 475863).

Dr. Adeyemi Oshunrinade [E.JD] is an expert in general law, foreign relations and the United Nations; he is the author of ‘Wills Law and Contests’ (2011), ‘Constitutional Law-First Amendment’ (2012) and other publications. Follow on twitter @san0670.

Categories: LAW

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