JohnAlanCohan@aol.com 310.278.0203 Probate/Conservatorships IRS Audits IRS Collection IRS Appeals U.S. Tax Court IRS Criminal Investigation Tax Litigation Tax Opinion Letters Business Plans Aviation Law Tax Exempt/Nonprofit Organizations All aspects of equine and livestock law, particularly tax matters, syndications, business plans, tax opinion letters, and drafting of business documents.		Challenging a Will by John Alan Cohan, Attorney at Law There is heightened concern over situations in which the validity of a will may be contested on grounds related to the alleged mental incapacity or susceptibility to undue influence of the will’s author (the testator). This concern is expected to increase due to the growing number of Americans who are living longer, and in view of the risk for illnesses, such as AIDS, that can produce mental changes. The most frequently encountered legal challenges are (l) that the testator lacked testamentary capacity at the time the disputed will was signed, and (2) that specific contents of the will resulted from undue influence exerted upon the testator by one or more persons. Often both allegations are made simultaneously. If lack of testamentary capacity is proven, the entire will is invalid; if undue influence is proven, those portions of the will that either result from or cannot be separated from the results of undue influence are invalid. Testamentary capacity is found if the testator has sufficient mental capacity to “understand the nature of the testamentary act, understand and recollect the nature and situation of his property, and remember and understand his relations to his living descendants, spouse, parents, and those whose interests are affected by the will.” The testator is must also be free of delusions or hallucinations whether caused by medication or due to the progression of a debilitating illness. Undue influence is a more complex and less precisely defined concept. It involves an element of “coercion, compulsion or restraint.” Mere appeals or arguments, or influence resulting from gratitude or affection, do not constitute undue influence. Rather, the testator’s mind must be subjugated to that of another, his free agency destroyed, or his volition overpowered. This usually means that the “influencer” (l) played an active part in procuring the will, (2) the accused party was a lover or in a confidential relationship with the testator, and (3) he profited “unduly” under the provisions of the will. Mental illness, AIDS dementia, and other medical factors are important in assessing a testator’s competence at a particular point in time. There is usually insufficient information or documentation concerning the circumstances of executing a will, and therefore special procedures must be taken if testamentary capacity may be called into question. The cornerstone in addressing the situation may involve a psychiatric clinical evaluation and other tactical decisions such as the use of audiotape or videotape recording devices in consultation with the testator’s attorney. An evaluation would include assessment of the testator’s recent and remote memory, attention and concentration, receptive and expressive language, and speech function, mood, affect, appearance, grooming, thought form, flow, content, insight and judgment. The interviewer should focus on contents of the will that are identified by legal counsel as likely to be challenged. This is done by asking the testator to discuss the reasons and motives behind each such decision. These responses will form the basis for documenting the testator’s grasp of circumstances, use of logic and reason, and capacity for reality testing. For example, “You seem uncertain about the decision to leave so much of your estate to Joe. How did you arrive at that decision?” Or, “You’ve indicated that you have not been a religious person, yet you intend to leave a substantial amount of money to a religious organization. Can you explain this?” In addition, evidence of medical records, business records, and personal documents such as photographs, home videotapes, checkbook records, personal correspondence, notebooks, diaries and even the will itself (if it is “holographic,” or handwritten) can help prove the testator’s mental capacity. For example, evidence to support a testator’s intentions can be correspondence between the testator and certain of his relatives, indicating longstanding and increased hostility that preexisted the entry of the testator’s lover into his life, tends to rebut the notion of undue influence on the part of the surviving lover. Evidence contrary might be a medical record containing nursing notes indicating the testator was not able to find his own room on the ward, that he could not distinguish his own clothes from those of his roommates, that he never learned his nurse’s name, that he consistently thought he was in a different state, or that he believed his mother was “in cahoots with the Mafia and was trying to have him killed.” Most people inevitably postpone making out a will, and many of the foregoing problems could be circumvented by appropriate and timely estate planning. Back to Top