Thinking of challenging a will based on the person’s capacity at the time the will was created? In North Carolina, there is a presumption that every person has the requisite capacity to make a will. Anyone who challenges the will bear the burden of proving that such capacity was lacking.
A person’s capacity to create a will is called testamentary capacity. A person has testamentary capacity if the will suggests that the person (1) generally knows what property they own, (2) who would naturally be expected to receive their property after their death, (3) they are making a will, and (4) the effect the will has on their estate. For example, if the person leaves their property to an unrelated person and does not acknowledge their own children who would normally inherit, the will may be open to a challenge based on testamentary capacity.
A person challenging the will (a “caveator”) only needs to show that one of the essential elements of testamentary capacity is lacking. However, a caveator must present more than general evidence about the testator’s deteriorating physical health and mental confusion in the months preceding the execution of the will upon which the caveator based their opinion of the testator’s mental capacity.
A caveator needs to present specific evidence that the testator did not understand their property, the persons to whom they wished to give it, and the effect of their act of making a will at that time.
In a recent will challenge, the court noted that almost all of the caveators’ evidence on testamentary capacity were general allegations of confusion and deteriorating health. In re the Will of McNeil, the caveators claimed that Mrs. McNeil lacked the capacity to write a new will two week prior to her death. However, the caveators could not identify any specific instance in which the Mrs. McNeil was unable to recall the name of a family member or understand what was going on around her. The caveators produced no medical records or affidavits from treating professionals that showed Mrs. NcNeil suffered from any mental infirmity. Getting in evidence of capacity of the testator/will drafter is a major issue in a will caveat.
If you are a person who has an interest in a decedent’s estate and feels that the testator of the will may have lacked sufficient capacity to write the will in question, please contact Sanders Law Firm, PLLC. 336-724-4707
Sanders Law Firm PLLC also handles business matters, collections, personal injury, and wrongful death cases.
W. Kirk Sanders, Attorney
Sanders Law Firm, PLLC
326 N. Spring Street
Winston-Salem, NC 27101
Telephone: (336)724-4707
Facsimile: (336)724-2077
In their application, Mars claims that they have exclusively used “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing tan-colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” Hershey points out that several companies manufacture similar candy bars and use a cross-section of the bar on their packaging. Therefore, Mars’ claim to exclusive use of such a cross-section is a misrepresentation.
