Thursday, June 16, 2011

Who's in Their Right Mind Anyway.

A probate court in Pennsylvania is determining whether the heir to the DuPont fortune had the capacity to execute a valid will. http://www.philly.com/philly/news/pennsylvania/123980894.html

In Minnesota, testamentary capacity means that the person executing the will knows the "nature, situation, and extent" of their property, the claims of others on their estate, and be "able to hold theses things in their mind" long enough to make a rational decision in distributing their assets. Check out the case of In re Estate of Torgersen, 711 N.W.2d 545, for more explanation. You don't have to be a financial genius to have capacity, just need to meet those three minimum requirements.

If you are setting up your estate plan and are thinking about disinheriting someone, a good idea is to request that your attorney ask you questions to demonstrate your capacity and record that conversation. That way, if anyone questions whether you had capacity when you made the will, there will be evidence showing that you did. If you're setting up a plan that disinherits someone, speak with a licensed attorney in your area about preventing questions of capacity.

2 comments:

  1. Always glad to see the Torgerson case discussed, since I wrote her Will, which was upheld. Bob McLeod invites me into his probate law class at William Mitchell every year to talk about it, since the case provides a terrific outline of everything needed for a valid will, e.g. competence, absence of undue influence, and proper execution.

    The funny thing about the case is what it actually holds - that the loser in a will challenge can get their fees paid by the estate if the challenge is brought by someone named as PR (executor) in a previous will. In this particular case, it meant that the loser's lawyer got paid more than the winner's.

    This really is a great blog you've got here, and I am very pleased to see it done so well. Congratulations.

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  2. Dave,

    Thanks so much for your kind words! I'm honored to get your insight.

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