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Determining mental capacity during will challenges

Unlike the dramatic challenges to the will of a wealthy person that Washington residents see in entertainment programming, the vast majority of wills make it through probate without opposition, according to FindLaw. In fact, about 99 percent of them are unchallenged, due to the weight a will carries as a final record of how the testator wishes to distribute his or her inheritance.

That said, anyone who stands to gain from the estate can challenge a will. Of the 1 percent who do, spouses typically have the most success. The grounds for their challenges are usually that the deceased was unduly influenced by someone or lacked the mental capacity to understand the importance of the document.

Forensic psychiatrist Pogos H. Voskanian explains that, when evaluating one’s testamentary capacity, the testator must be able to understand several things. The document’s maker will be assessed as to whether he or she, at the time the will is made:

  • Understands what a will is and is actively making it
  • Knows the amount or components of the estate
  • Recognizes estate beneficiaries, relatives and friends
  • Understands how property is to be distributed

Another vital piece of the evaluation is whether the testator was “unduly influenced” by an interested party when making the will. This influence may refer to deception or manipulation from the second party or to the testator’s mental state that enables the deception.

The evaluator must distinguish between “encouragement” from relatives or friends to include them in the will and actions that are coercive. The assessment process typically includes careful examination of a variety of documents, including pharmacy and nursing home records and other evidence of psychiatric, substance abuse and medical histories. It also involves personal interviews with a variety of witnesses, as well as friends and relatives.

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Riach Gese Jacobs, PLLC
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P.O. Box 1067
Lynnwood, WA 98046

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