Testamentary Capacity

March 14, 2017 § Leave a comment

Lack of testamentary capacity is a common line of attack against wills.

The recent COA case Estate of Gardner: Callington, et al. v. Gardner, decided February 21, 2017, includes a nice exposition of the law on the subject, which I am providing for you in condensed form — a sort of hornbook-ette on the subject. From the opinion by Justice Wilson:

¶21. “For a will to be valid, the testator must possess testamentary capacity.” Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). To have testamentary capacity, an individual must be of “sound and disposing mind.” Miss. Code Ann. § 91-5-1 (Rev. 2013). “Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will to understand and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶20) (Miss. 2009). In addition, “[r]ecognizing that a testator may not always possess testamentary capacity, [the Supreme Court has] held that he may nevertheless execute a valid will during a lucid interval.” In re Estate of Edwards, 520 So. 2d 1370, 1373 (Miss. 1988). “The key to testamentary capacity is mental competency at the time the will is made.” Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976).

¶22. “The burden of proving testamentary capacity is on the proponents of the will, who can present a prima facie case simply by offering into evidence the will and the record of probate.” Laughter, 23 So. 3d at 1061 (¶18). “Once a prima facie case has been established, the burden of going forward shifts to the contestants to overcome the prima facie case.” Id. The ultimate burden of proof remains on the proponent, who “may . . . present rebuttal proof if necessary.” Edwards, 520 So. 2d at 1373. The Supreme “Court has held that the testimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution.” Id. “In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.” Id.

¶23. “Furthermore, . . . opinions of lay witnesses regarding testamentary capacity [must] be supported by ‘facts as a basis for the witnesses’ conclusion.’” Estate of Rutland v. Rutland, 24 So. 3d 347, 353 (¶20) (Miss. Ct. App. 2009) (quoting In re Estate of Briscoe, 293 So. 2d 6, 8 (Miss. 1974)). “Overly broad or generalized testimony indicating a lack of capacity will be deemed insufficient where it is contradicted by competent evidence and is ‘obviously based upon the infirmities of advancing age rather than upon any abnormal conduct indicative of mental aberration.’” Id. (quoting Briscoe, 293 So. 3d at 8).

After noting that the contestants had offered only vague and general proof that the decedent’s physical condition was “terrible” at the time of making the will, the court continued:

¶24. … the children failed to come forward with evidence “to overcome the prima facie case” of testamentary capacity. Laughter, 23 So. 3d at 1061 (¶18). … physical weakness does not preclude one from making a will, and a bare and unexplained assertion that a testator’s mental state was “terrible” does not raise a jury issue as to his mental capacity.

The court next pointed to the specific testimony of the subscribing witnesses:

¶26. The subscribing witnesses to the will—Sanders and Roussel—had both known Richard for many years, and both testified that he was mentally alert and capable of understanding what he was doing when he executed his will. Sanders further testified that Richard was clear and specific regarding his wishes. Moreover, in addition to the absence of any evidence that Richard lacked testamentary capacity, we note that the mental capacity required to execute a general power of attorney is essentially the same as the capacity required to execute a will. See Dowdy v. Smith, 818 So. 2d 1255, 1258-59 (¶16) (Miss. Ct. App. 2002). With Linda’s encouragement, Sylvia took Richard to Sanders’s office for the specific purpose of signing a general power of attorney, and Sylvia testified specifically that she believed that her father had the mental capacity to sign the power of attorney. Yet neither Sylvia nor Linda was able to explain at trial why they thought Richard had the capacity to sign the power of attorney but not the will.

¶27. In short, the children presented no evidence that Richard lacked testamentary capacity at the time he executed his will. All testimony relevant to his mental capacity on March 2, 2009, indicates that he had sufficient capacity to execute both a general power of attorney and a will. Accordingly, the chancellor’s ruling granting Mae Otha’s motion for JNOV was correct as it relates to the issue of testamentary capacity. See Hayward v. Hayward, 299 So. 2d 207, 209-11 (Miss. 1974); Noblin, 54 So. 3d 291-95 (¶¶34-45); Rutland, 24 So. 3d at 351-53 (¶¶10-22); In re Estate of Pigg, 877 So. 2d 406, 410-11 (¶¶12-23) (Miss. Ct. App. 2003).


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