Tag Archives: Testamentary Capacity

Use Checklists to Avoid a Will Dispute

One of the easiest steps that an estate planning attorney can take to try to prevent a will that he drafted from being challenged is to have the witnesses to the will utilize a checklist in order to create a documented record that they observed that the testator had adequate testamentary capacity. First some background: in order for a will to be valid, the person executing the will (often referred to as the “testator”) must have “testamentary capacity” (which, in most states, is defined as the adequate mental ability to understand his family, his property, the fact that he’s making …

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Posted in Trust Disputes, Will Disputes \ Comments Off on Use Checklists to Avoid a Will Dispute

Why a Guardianship Proceeding Could be a Precursor to a Will Change

Did you know that in Virginia, a person who is the subject of a guardianship and/or conservatorship can still have the requisite testamentary capacity to enact or amend his will? As a result, there’s a huge potential for mischief by those seeking to be appointed a guardian and/or conservator. First, some background: several years ago, the Virginia Supreme Court reiterated – in the case Parish v. Parish, 281 Va. 191 (2011) – that a person can still have testamentary capacity to make a will (that is, the required mental ability), even if a court has appointed a guardian and/or a …

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Posted in Disinheriting Family Members, Guardianship/Conservatorship Proceedings, Undue Influence \ Comments Off on Why a Guardianship Proceeding Could be a Precursor to a Will Change