Will Contest – Claims of Undue Influence and Dimished Mental Capacity

Here is a fun read – you decide what you think – my preliminary comments are below – the following link is to an interesting August 1, 2013, newspaper story about a will contest with allegations of undue influence and diminished mental capacity, click here.

Although in my opinion the allegations as they are stated in the article present a plausible case, more detailed information is needed to evaluate the likelihood that the claims might prevail to invalidate the will.  For example, (1) I would be looking for medical and other factual evidence to establish the severity of the dementia – can it be established that at the time that the wording of the will was prepared and at the time that the will was signed Mr. Carlen lacked mental capacity to understand the nature of his estate assets, the people to whom he might naturally leave his assets, and the provisions in the will; (2) does the evidence establish that the distribution provisions in the will are unnatural as to how Mr. Carlen would have wanted to distribute his assets (and look at all of the provisions including the personal property, family keepsakes, and whether he left anything at all to his family members or totally disinherited them); (3) how will the attorney who prepared the will testify about how the will was prepared and Mr. Carlen’s mental capacity and ability to understand; and (4) what is the best evidence that might establish that Mr. Carlen did not of his own free will communicate his wishes for the terms of the will and then sign the will?

Dave Tate, Esq. (San Francisco)

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