If you are dealing with a loved one who possibly was not capable of signing a will because of their physical or mental state and your share of the estate is diminished, you will want to consult with a Westchester estate attorney whether or not a will can be challenged based on the fact that, among other things, your loved one did not have the testamentary capacity to execute this important legal document.
There are guidelines for proving that someone is not able to execute a will. To prove that someone does not have mental capacity, the person challenging a will must prove that the person who allegedly made the will either 1. did not understand they are signing a will and know what a will is, 2. did not know the nature and extent of his or her estate or 3. did not know the objects of their bounty.
The testator has to know what it is they are signing is a will and what a will does. If the person believes they are signing a normal contract or just doesn’t understand what it is that they are signing at all, they would not be able to have the capacity to sign.
The testator must have an understanding of the nature and scope of their estate. This doesn’t mean that the testator has to have a perfect understanding of the total value of their estate, but it does mean that they have to understand what is there and what is not. If the testator believes they own a famous painting when they don’t and never did, or thinks that they still own real property that they actually owned two decades ago, they would not have testamentary capacity. However, understanding they own their house, but not knowing the exact appraisal value would still pass this part of the test.
Finally, the testator must know the objects of their bounty. What this means is that they must understand who their heirs are and how they are related to them. This means they have to have recognition of their spouse, children and grandchildren and what his or her relationship to them is. However, this does not mean the testator needs to know distant relatives, but the testator does have to know those who are closest to them.
Whether you are considering challenging a will or are in a position where you have to defend a will in Westchester County, call the Law Offices of Albert Gurevich at (914)