Monday, September 26, 2016
Richard B. Keeton recently published an Article entitled, Balancing Testamentary Incapacity and Undue Influence: How to Handle Will Contests of Testators with Diminishing Capacity, 57 S. Tex. L. Rev. 53 (2015). Provided below is a summary of the Article:
Lack of mental capacity is “the second most commonly alleged ground for setting aside a will.” This Article will explore these ever-increasingly common, yet intricate and complex scenarios. First, Part II of this Article will give the reader a broad overview of the requisite mental capacity to execute a will. Additionally, because each state has its own unique-- but similar--common law tests, sample case studies are provided for the jurisdictions of Missouri, New York, and Texas. Next, Part III will discuss the generally recognized presumption of requisite testamentary capacity--presumed across all jurisdictions--unless evidence is presented to show otherwise. Part IV of this Article will delve into various case law and common law tests used to prove the existence of undue influence in the execution of testamentary documents. Following, Part V attempts to answer the circular question challenging attorneys and courts of whether a testator can actually be unduly influenced if he or she lacked testamentary capacity. Upon conclusion, this Article will provide practical recommendations to consider when assisting persons with Alzheimer's disease and other forms of dementia execute testamentary instruments.