Sunday, March 12, 2017

Daniel Gigiano Reviews Mental Capacity For Wills

Will Changing Mental Capacity

In 2016, the Ninth District Court of Appeals decided that a person under legal guardianship can
execute a valid will, ruling on will changing mental capacity.  Even more notable are the reasons: he suffered from schizophrenia, post traumatic stress disorder, had a low IQ and was a frequent drug user.  Using traditional analysis, the court determined that he had the capacity to execute a will. 

Will Changing Mental Capacity Factors

In order to have the capacity to execute a will, one must understand: (1) that he or she is drafting a will; (2) what he or she owns; (3) who his or her natural heirs would be without a will; and (4) his or her relation to the members of his or her family.  Such understandings are at the level of a layperson and not an attorney.  This means the person should be able to state whether or not he or she owns real estate, vehicles and other property.  The person should be able to recall all of his or her biological and adoptive children.  These are just a few examples, but the point is that this is not a highly complex level of understanding. 

Court Of Appeals Will Change Mental Capacity Decision

The court of appeals did note that being subject to guardianship creates a presumption that one lacks
the capacity to execute a will.  However, that presumption can be overcome by showing facts that support the four factors for capacity to execute a will. 

In the case at hand, the person changed his will and family members asserted that the will was invalid.  In reviewing the evidence, the Ninth District Court of Appeals decided that the presumption of lack of capacity was rebutted.  However, this does not end the inquiry, as this only rules out automatic lack of capacity.  Once this occurs, the court disregards the guardianship as evidence of lack of capacity and looks at other evidence of capacity to execute a will.  For technical reasons, the court sent the matter back to the probate court to consider conflicting testimony on competency, which could affect the capacity to execute a will.   
The Ninth District Court of Appeals also considered the issue of undue influence.  Undue influence is not the mere presence of some influence.  Undue influence occurs when the person’s will is so overpowered that he or she is no longer expressing free will in executing the will, but is expressing the will of another.  The factors are: (1) a susceptible person; (2) another’s opportunity to exert influence on the person; (3) attempted or actual improper influence; and (4) a result showing the effect of such influence. 

Attorney Daniel Gigiano.  Experienced.  Knowledgeable.

Attorney Daniel Gigiano is a Wadsworth probate lawyer, who serves the needs of clients in Medina County, Wayne County and Summit County.  Call now at 330-336-3330 if you need the services of an experienced probate attorney.      


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