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Estate Administration: Will Contests and Testamentary Capacity

Readers of our website may notice that we list “Estate Administration” as an area of our practice. We assist executors of wills, or personal representatives of estates to properly dispose of a decedent’s assets.

Occasionally, we get involved in cases in which a party contests a decedent’s Will that has been probated with the court. Typically, that person will claim that another Will should be considered the proper Will because the most recent Will was either

  • made when the decedent lacked the mental capacity at the time the Will was made, or
  • the most recent Will was made under the undue influence by a person who held a position of trust and confidence with the decedent.

 Last Will & Testament

In the case of Weedon v. Weedon, an older woman with a diagnosis of multiple myeloma revised her Will in 2007. Prior to surgery in 2008, she decided to revise her Will again. As part of the revisions, the testatrix decided to bequest all of her real property to just one of her five children (who had also taken the role of caregiver for her mother). Four days after signing the new Will (and three days after surgery), the decedent died. After the will was probated, the remaining four children sued their sister seeking an order that either their mother lacked the mental capacity to make the revised Will; or that the revised Will was made as a result of their sister’s undue influence.

The King George Circuit Court determined that the decedent lacked the testamentary capacity when she executed the Will and that the Will was the result of undue influence, but the Virginia Supreme Court reversed. In this blog post, we examine the direction given by the Virginia Supreme Court in determining whether a decedent had the mental capacity at the time the Will was made.

As the Court noted, “The proponent of a will bears the burden of proving that at the time the testatrix executed her will she . . . ‘was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of the property.'” However, the proponent of the Will is entitled to a presumption that such testamentary capacity existed

  • where the will is in writing and signed by the [testatrix];
  • the signature is made or the will acknowledged in the presence of at least two competent witnesses, present at the same time; and
  • such witnesses shall sign the will in the presence of the testatrix.

Once this presumption exists, the person contesting the Will then bears the burden of going forward with evidence to overcome this presumption. They need only provide evidence sufficient to rebut the presumption of testamentary capacity. If so, then the proponent of the Will must produce evidence of testamentary capacity.

In this case, the Virginia Supreme Court reviewed the evidence and determined that even assuming that the plaintiffs contesting the Will overcame the presumption of testamentary capacity, the proponent of the Will produced sufficient evidence of testamentary capacity. The Virginia Supreme Court stated that the trial court based its decision on an “incorrect view of the law and an improper weighing of the evidence” because the trial court did not rely upon the evidence of testamentary capacity of the testatrix at the time the Will was signed.

Will contests can be very difficult, and expensive cases, because of the sensitive issues and the emotions involved. However, as this case illustrated, the “facts” as they exist at the time the Will was signed are critical to a determination of testamentary capacity. Careful steps taken at the Will signing can ensure compliance with the terms of the Will.

Tarley Robinson, PLC,  Williamsburg, VA – Attorneys and Counsellors at Law


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John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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