"Testamentary Capacity"

To make a valid the will, you must have testamentary capacity. This means you must be at least 18 years of age and be of “sound mind.” To be of "sound mind," you must have the capacity to (1) understand the extent of your property, (2) understand the natural object of your bounty (i.e. spouse or domestic partner, issue, and parents), and (3) understand the nature of your act. You have to know your are executing a will, but you don't have to know all the legal technicalities of the will.

The testamentary capacity required is higher than what is required for marriage, but lower than what is required to enter into a contract.

If you don't have capacity, then the entire will is invalid. Your property, therefore will pass through intestate succession. Click here for my post on intestate succession. There is an exception if you had a valid prior will that was purportedly revoked by a second will (the one for which you did not have capacity). In that case, the first instrument will be probated because if you did not have testamentary capacity, then the second will could not have revoked the first.

Insane delusion
A will can also be attacked if at the time of execution the testator was suffering from an insane delusion. An insane delusion is a mistaken belief about something that is contradicted by the facts. A finding of insane delusion requires four elements: (1) testator had a false belief; (2) that false belief was the product of a sick mind; (3) there is no evidence to support the belief; and (4) the delusion affected testator's will.

Only that part that is affected by the delusion is invalidated. As to that part, it will go to the residuary devisee, or if the residue itself was tainted by the delusion, then it will go by intestate succession.

The analysis for finding an insane delusion is as follows:

1. Step 1: is there an delusion?
2. Step 2: To offset this delusion, the proponent must establish a reasonable basis for the false belief (minority rule) OR a rational person would have reached the same conclusion under the same circumstances (majority rule).
3. Step 3: causation. But for this delusion the will would have resulted in an alternative disposition that would leave the challenger in a better position.

Undue influence
Undue influence occurs when another person substitutes his intent for the testator’s intent. The influencer is said to have dominated the testator’s will. The elements for finding an undue influence is: (1) testator was susceptible to undue influence, (2) the influencer had motive & opportunity (such as access) and (3) the disposition was the result of the influence (causation).

If these three elements are met, a presumption of undue influence arises and the burden shifts to the defendant to rebut this presumption.

Sometimes the testator can deter challenges by putting a "no contest clause" in the will. If a beneficiary challenges your will, the beneficiary loses whatever interest she has under the will. Generally, these are enforceable unless there is probable cause for the contest.

Confidential relationship
If (1) there is a confidential relationship, (2) the influencer actively participated in the drafting of will, and (3) received substantial amount under the will, then there is a presumption of undue influence. How to rebut that presumption? You need to get the advice of independent counsel to show that the testator was not susceptible and knew exactly what he wanted to do.

Gifts to attorneys
The majority rule is that if a lawyer is the drafter of a will and the lawyer takes something under the will, there is a presumption of undue influence (unless the lawyer is married to or is a relative of the client). A minority of states apply an irrefutable presumption of undue influence.

Fraud
The elements of fraud are (1) misrepresentation of material fact known to be false by the wrongdoer, (2) made with intent to deceive, (3) for the purpose of influencing the testamentary disposition (for the purpose of getting something under the will), and (4) causation. The remedy is that the part of the will that the result of fraud is invalid. If the whole will was tainted, then then the whole will is invalidated. Usually a constructive trust is imposed.

Duress
“I’m going to kill you if you don’t name me in the will.”

Tortuous interference
Trying to get the testator not to leave something to someone. For example, Anna Nicole claimed her step brothers tried to prevent her from being named.