A will is a common estate planning tool, and the simplest way to ensure your assets are distributed the way you want them to be after your death. However, not everyone is competent to create a will. If the testator (the person creating the will) does not have the legal capacity required, the instrument will not be considered valid. Some basic requirements for a will in Fayetteville AR to be valid include the testator’s legal and mental capacity, as well as the absence of undue influence, fraud or duress in creating the will.
How is competency defined?
First, the testator must have legal capacity, which includes being old enough to make a will. The age of majority in each state is different. In Arkansas, a testator must be at least 18 years old. Second, the testator must be able to understand the nature and extent of their property and know the identity of their heirs or family members. Third, the testator must be able to understand the disposition they are making of their property.
In Arkansas it is presumed that the testator has the necessary mental capacity to make a will. That means that someone challenging a testator’s mental capacity has to prove incapacity. If evidence of incapacity is given to the court, then the proponent of the will has to provide evidence to the contrary.
How do you prove mental capacity?
In Arkansas, these proceedings can actually occur before death in what is called “ante-mortem probate” proceedings. This method is more efficient since the testator is still alive, allowing the court to actually evaluate the testator’s mental capacity directly. This helps to avoid a lengthy and expensive will contest. Some attorneys who assist their clients in drafting a will, decide to videotape the process when they anticipate that the testator’s capacity may be questioned after their death. The video tape provides better evidence of testamentary capacity.
Even a testator who is found to have lacked testamentary capacity due to senility, loss of memory, infirmity or insanity, can have what is known as a “temporary period of lucidity” or a “lucid moment” during the execution of the will. So, not all incapacity results in a void will.
What if undue influence or fraud in drafting a will in Fayetteville AR is suspected?
Along with determining testamentary capacity, a forensic specialist can be used to determine whether there are any signs of undue influence. A suspicion of undue influence may arise when someone exploits an emotionally vulnerable individual who might otherwise be competent. This issue comes up when an heir contests the will. In that case, the forensic specialist reviews videotaped recordings of the will drafting, or correspondence and other records, for evidence of fraud or undue influence.
In some situations, it can be shown that a beneficiary of the will in Fayetteville AR made a specific false statement to the testator, which resulted in the testator changing his will to benefit the beneficiary, based on that false statement. Some types of fraud are challenged more frequently than others in will contests. For example, a testator who has had several mental lapses, or allowed a beneficiary to make decisions and conduct affairs for a period of time, is more likely to be suspected of allowing fraud to influence the will.