An Approach to Due Execution of the Will

January 17, 2018 § 2 Comments

The subscribing witness has an important responsibility in connection with execution of the will. The witness’s duty is four-fold:

First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.]. Estate of Holmes, 103 So.3d 1150 at ¶ 10 (Miss. 2012).

I blogged about the concept here.

As the attorney, you have a duty above that of the witnesses to ensure that your client, the testator, is competent to make decisions that result in a valid will.

But how do you do that?

In a recent post on the Expert Institute Blog, a geriatric psychiatrist offered a template for assessing your testator’s testamentary capacity:

 1) Awareness of the situation/communicating a choice:

Can you tell me the purpose of today’s meeting?
What have you decided to do regarding your Will?

2) Factual understanding of the issues:

Can you tell me what a Will is?
Do you know or can you approximate the extent of your estate?
Who in your family may survive you?
Can you tell me in your own words what you would like to happen to your estate after you die?

3) Appreciation of likely consequences:

Do you believe that a Will is necessary? What do you believe would happen if you do not have a Will?
Can you tell me how your Will may affect your family?
How well does this Will represent your wishes?

4) Rational manipulation of information:

How did you reach your decisions when you thought about your Will?
What was important to you in reaching your decision?
What are the advantages and disadvantages of your decision?
Were there other possibilities that you considered but decided against? What were your reasons? What makes Person A a better choice as your heir than Person B?

As the blog states:

As the population ages, lawyers will increasingly need to detect intact versus impaired decision-making capacities. Lawyers can directly screen for decisional capacity … . In so doing, they rely on more than simple impressions of their clients, or on family members’ subjective, at times conflicted, views. Clients can mask their deficits and family members can misjudge the severity of those deficits, or be motivated by self-interest. Primary care physicians are often asked to determine competency, but they may not be trained to assess cognition, and their opinions may lack validity. This explains why physician competency evaluations often disagree. Unless a client’s decision-making capacities are specifically assessed, the presence or absence of those capacities cannot be presumed.

If you will conduct this inquiry in the presence of the subscribing witnesses, you can ensure that they can competently testify later if necessary about the testator’s testamentary capacity.

I suggest you make this template a form that you keep with the client’s file, including a dated note that it was discussed with the client, and including any observations. Also have the subscribing witnesses sign it. That could prove to be an invaluable aid in the event of a will contest.

§ 2 Responses to An Approach to Due Execution of the Will

  • Bentley E. Conner says:

    See In the Matter of the ESTATE OF Jimmie D. EDWARDS, 520 So.2d 1370 (Miss. 1988). Chancellor found lack of testamentary capacity on basis of tesimony of Dr. Richard Naef. Supreme Court reversed and said, “…it is unclear that Dr. Naef properly understood the legal term “testamentary capacity.”
    1. the test of one’s capacity to execute a will “is the ability of the testator at the time to understand and appreciate the nature and effect of his act, the natural objects or persons to receive his bounty, and their relation to him, and is capable of determining what disposition he desires to make of his property
    2.Such capacity “is to be tested as of the date of the execution of the will.
    3.the will’s proponents carry the burden of proof, which they meet “by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof
    4.the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary
    5. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.
    6. 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
    7. In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.
    8. whether [Testator] possessed testamentary capacity when attended by his physicians months before the will’s execution, is irrelevant to the issue ….. rather, we are concerned with his testamentary capacity on [the day the will was executed]. Recognizing that a testator may not always possess testamentary capacity, we have held that he may nevertheless execute a valid will during a lucid interval.

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