Challenging a Will Based On Lack of Capacity of the Testator

Elder's Hand Signing Will - Dave Burns Law Office, LLC

Several different reasons can support a challenge to a will, including undue influence, fraud, duress, and improper execution. Often, disappointed heirs or beneficiaries contest a will based on lack of capacity — but what does it mean when a petition asserts lack of capacity of the testator?

Requirements for Making a Will

In Section 524.2-501, the Minnesota Probate Code establishes the standards for making a will, stating: "Any person 18 or more years of age who is of sound mind may make a will." The “sound mind” requirement underlies a will challenge based on lack of capacity — having a sound mind means having the mental capacity to execute the will.

A challenge to the testator’s capacity involves evaluating the testator’s state of mind at the time he or she signed the will. Even a person diagnosed with dementia or Alzheimer’s disease can have sufficient capacity to execute a will at a specific point of time. In making the analysis, the probate court considers specific factual evidence, including whether the person had sufficient capacity to know and understand:

  • The precise nature and provisions of the will
  • The nature, extent, and condition of his or her assets and property
  • The individuals who ordinarily would inherit his or her estate

The standard for mental capacity to execute a will is very specific. While general evidence about a person’s memory decline or impairment, lack of comprehension and judgment, and inability to communicate constitute circumstantial evidence, the probate court’s inquiry is directed specifically at the testator’s state of mind at the point in time when he or she signed the will.

Challenging a Testator’s Capacity

Only interested persons have legal standing to assert a challenge to a will. An interested person is one with a stake in the outcome. Beneficiaries and those who would inherit in the absence of a will are the only individuals who have that standing.

Contesting a will involves filing a petition with the probate court. Generally, the petition must be filed within a year of the date of death.

Will contests are a type of probate litigation before the probate court. After a period in which the parties gather evidence, the court holds a hearing to make a decision on the claims in the petition.

The Probate Code places the burden of proof in contested cases squarely on the party challenging testamentary capacity. Section 524.3-407 sets the burden of proof and further states: “Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.”

Proving lack of capacity requires introducing specific documentary evidence and testimony at the hearing. Evidence in cases asserting lack of capacity is characteristically complex. It may include:

  • Medical records and other relevant written documents
  • Testimony of doctors and other medical professionals
  • Testimony of people present at execution of the will, including witnesses who signed
  • Testimony of family members and close friends of the decedent
  • Testimony of caregivers
  • Testimony of a guardian or conservator
  • Testimony of professionals (lawyers and financial advisors) who assisted the decedent

The evidence includes demonstrating the decedent’s state of mind at signing of the will, as well as relevant circumstances prior to and following execution of the will.

If the probate court determines that lack of capacity existed at the time the testator executed the will, the court will invalidate the will. The decedent’s estate then is distributed to the decedent's heirs according to the laws of intestate succession, as if the will never existed.

Probate Court Litigation

Contesting a will based on lack of the testator’s capacity requires an experienced probate litigation attorney. The attorney’s role includes fully evaluating the potential claim to determine whether the basis for a claim exists. If the client decides to pursue the claim, the attorney prepares and files the petition in probate court. Then the attorney gathers documentary evidence and witness testimony in preparation for presenting the case in court.

Will contests of any type are difficult from a legal standpoint. They also are challenging from an emotional perspective. Depending on the circumstances, a will contest can tear a family apart. The litigation process may destroy lifelong relationships.

An experienced probate litigation attorney fully understands all the legal and personal ramifications of pursuing a claim of lack of capacity or other challenge to a will. As part of the decision-making process, the attorney will explain all aspects of process, potential outcomes, and possible ramifications, so the concerned person can make a decision about whether or not to proceed.

Talk With a Respected Twin Cities Probate Litigation Attorney

My practice at the Dave Burns Law Office includes years of experience as a probate court litigation attorney. From the early investigatory and analytical stages of a potential will contest to proving the case through evidence in the court hearing, I focus on ensuring that clients are fully aware of the complex process and make informed decisions along the way.

In my probate and estate litigation practice, I work with family members, other beneficiaries of an estate, and personal representatives facing probate or estate disputes, including any type of challenge to a will. I concentrate my practice on the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.

If you would like to discuss a situation involving possible testator lack of capacity or another contested matter that may require probate litigation or bankruptcy litigation, please contact me at (612) 677-8351 or by email at I welcome inquiries from clients and referring attorneys throughout the State of Minnesota.

Categories: Litigation, Probate

The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer