LEGAL CAPACITY TO MAKE A WILL: TESTAMENTARY CAPACITY

THE ABILITY TO TRANSACT BUSINESS IS NOT THE SAME AS THE LEGAL CAPACITY TO MAKE A WILL.  THE LEGAL CAPACITY TO MAKE A WILL IS REFERRED TO AS TESTAMENTARY CAPACITY.

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The best example of the Oklahoma Supreme Court rejecting the idea that someone who needs help to transact business is incompetent is found in In re Wadsworth Estate, 1954 OK 213, 273 P.2d 997.

 The will contestants (three of his children who were left $1 each) objected to the will offered for probate by another son and his widow.

 The Testator had been adjudged to be mentally incompetent several years before making his will.

 A doctor testified that the Testator was of limited intelligence but not incompetent. But not able to transact his own business without assistance. Admitted that the Testator would know his property, know his heirs, his relationship with them and the things in which he was chiefly interested. But that he was easily influenced by others.
 A neighbor testified that the Testator was not of normal intelligence, but weak minded. That anyone could be nice to him and buy from him at a fraction of the true value. That he was a good farm hand but had to be told what to do. He admitted that the Testator knew what property he owned, knew who he wanted to have it, and was likely to have left it to anyone whom he was pleased at the moment.

 A second neighbor testified that the Testator was not of normal mentality but was not feeble-minded. That he was easily influenced. That he needed help when transacting business. That people he liked could get him to do things he should not do. He admitted that he would know how many head of cattle he had, would know his farm machinery, knew who were his children, his wife and his heirs. That if he went to a lawyer’s office and told the lawyer to draw up his will that he would know what he was doing.
 A lawyer testified who turned down making the Testator’s will for the reason that he was concerned that undue influence had been exerted by the son.

 The registered nurse who had taken care of the Testator for 45 days during his last illness that she thought he was of below average intelligence, but that he had sufficient mental capacity to know and understand and carry in mind in a general way what property he had, who his relatives were, and what he would want done with his property at his death.

 The Testator’s family doctor who attended his for several weeks during his last illness that he had examined the Testator for the purpose of determining his mental capacity and gave his opinion that he had sufficient mental capacity to know and understand and carry in mind in a general way the nature and situation of his property, his relation to those naturally having some claim to his remembrance. The doctor thought that the Testator was feeble-minded but disagreed that he was easily influenced. He testified that the Testator asked him, “Doctor, do you think that I am crazy?” and also, “Do you think I am able to leave my property to Roland?”

 The widow testified that the youngest son (Roland) was the only child who had helped them.

 At ¶21-22 the Supreme Court found that the children had been taken away from the Testator and his wife and raised by others. That the Testator and his wife were of little education, low intelligence and easily influenced. That the Testator and his wife lived in squalor repulsive to the children. That one child, the youngest child, had remained at or near his parents, and had helped his parents as they aged. The Supreme Court held that the will was not an unnatural disposition under the circumstances. (Emphasis added.)

 At ¶23 the Supreme Court believed that the testimony of the family doctor relating the conversation he had with the Testator about leaving his estate to his youngest son, Roland, indicated intelligence.

 The Supreme Court held:

 ¶24 That the ability to transact business is not the true test of testamentary capacity.

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 ¶¶25-26 That the testimony by the witnesses for the contestants proved that the testator was a man of low mentality and could have been easily influenced, but reversed the trial court and directed that the will be admitted

Brent D. Coldiron is an expert in probate law. He knows when it is possible to challenge a will and what proof to look for and present to the judge. You can call Brent at (405) 478-5655 or 737-2244. His offices are located at 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City. Brent has over 42 years of experience. He knows what to do!