Regarding the second requirement, courts consider the testator’s mental capacity
at the time they signed their Will
and try to determine, in part, whether the testator:
- understood that they were executing a Will and what that meant;
- knew the nature and extent of their property; and
- knew to whom they were bequeathing their property (or, as was described in a 1954 Arizona decision,
In Re Walter’s Estate, the “natural objects of one’s bounty”).
In general, Arizona law (A.R.S. § 14-2712) starts with the presumption that the Will-maker’s testamentary capacity – i.e., that they were competent and of a sound mind – existed at the time they signed the Will. Courts also tend to view a Will as the “voice” of the testator; as that person can no longer otherwise express their wishes, courts tend to adhere fairly closely to the written Will.
As a consequence, if there are no allegations of undue influence, the person challenging the Will generally bears the legal burden of establishing mental incapacity.
Executing a Will and Understanding What It Means. Satisfying this standard touches on the fundamental concept of mental capacity. A person can demonstrate mental capacity by making decision and communicating them verbally or in writing to constitute a Will.
“Generally” should apply to determinations of capacity in most respects, as courts are to determine capacity on a case-by-case basis. In its 1952 decision in
In Re Westfall’s Estate, the Arizona Supreme Court cited an Oklahoma case that stated, “There is no rule by which it may be determined, with precision, where (testamentary) capacity ends and incapacity begins, but this question should be determined
from all the facts and circumstances of each particular case.” (Emphasis added.)
Against the backdrop of those facts and circumstances, allegations of mental incapacity must clear a fairly high bar. As examples, a moderate level of senility by itself is generally not sufficient; neither is a generally deteriorating mental state, eccentric behavior, failing memory, confusion, or other conditions often associated with aging.
In the context of making a Will, someone may be found to have lacked mental capacity if they could not:
- understand information about a particular decision;
- remember that information long enough to make the decision;
- weigh the information to make the decision, or
- communicate their decision.
Again, such determinations are case-specific; in a Will contest, a challenger should not assume that any apparent mental condition short of serious mental illness or a vegetative state is certain to be perceived as incapacity.
Knowing the Nature and Extent of One’s Property. In this area, Arizona courts have not been of much help, as there is a general lack of guidance in determining how familiar a testator should be with what they own and are bequeathing.
Without judicial guidance, the specific facts and circumstances of the case, and the evaluation by the court and the parties to the dispute, will take on great importance.
Knowing to Whom the Property Is Left. In describing the heirs named in the Will, on more than one occasion Arizona courts have used the phrase “natural objects of one’s bounty” to illustrate the importance of not only understanding – at the time the Will was executed – to whom property is being bequeathed, but also the nature of their relationship to the testator (e.g., spouse, child, sibling, cousin, friend, neighbor, etc.).
If a Will challenger can show that, at the time the Will was signed, the testator was consistently unclear as to whom they knew (among the Will’s beneficiaries) and what their connection was to each, such evidence may strengthen their argument for mental incapacity.
Conclusion. In the introduction, we identified two common grounds – undue influence and mental incapacity – for contesting a Will.
We have discussed them separately, but it is important to recognize that the two can be connected. For example, would a certain level of influence over a person of “sound mind” be legally acceptable, while the same level of influence over a person of questionable capacity would be “undue”?
Again, this is where the courts will look closely at the specific facts and circumstances of the case, and anyone contemplating a challenge or defense of a Will should recognize that, in an estate controversy, few conditions or arguments are certain to achieve any particular result.
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