Trust BCLP

Trust BCLP

lack of testamentary capacity

Main Content

Do You Need Testimony From Subscribing Witnesses To Admit A Will To Probate In Georgia?

July 8, 2015

Authors

Luke Lantta

Do You Need Testimony From Subscribing Witnesses To Admit A Will To Probate In Georgia?

July 8, 2015

by: Luke Lantta

The question of when subscribing witnesses are necessary to admit a will to probate can sometimes be a tricky one.  So tricky that it may even trip up a probate court.  The issues mainly seem to arise when dealing with shifting burdens when a will is challenged.

In a recent Georgia case, Reeves v. Webb (consolidated with Groenenboom v. Webb), there was a petition to probate the decedent’s will in solemn form, and an objection and caveat were filed on the grounds that there was a breach of fiduciary duty to the decedent, fraud, undue influence, and lack of testamentary capacity.  The probate court dismissed the petition by finding that the propounder did not make out a prima

Read More

Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

Authors

Luke Lantta

Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

by: Luke Lantta

Guardianship actions sometimes serve as a precursor to will contests.  If a petitioner seeks a guardianship of an alleged incapacitated adult and loses, what implications does that ruling have on a later will contest alleging incapacity?  In Copelan v. Copelan, the Georgia Supreme Court addressed that question while cleaning up some overruled guardianship law.  In the end, it came down to the standard of proof.

Read More

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

Authors

Luke Lantta

Georgia Supreme Court Addresses Numerous Fiduciary Litigation Topics In Will Contest Opinion

July 23, 2013

by: Luke Lantta

Standing to caveat a will?  Check.  Undue influence?  Check.  Testamentary capacity?  Check.  Monomania?  Fraud?  Check and double check.  While the Georgia Supreme Court’s opinion in Odom v. Hughes didn’t break any new ground, it examined such a wide range of will contest topics that it’s definitely worth a read.  Without further ado . . .

Read More

Improper Undue Influence Jury Charge Leads To New Trial

March 6, 2013

Authors

Luke Lantta

Improper Undue Influence Jury Charge Leads To New Trial

March 6, 2013

by: Luke Lantta

Many fiduciary litigation concepts, like undue influence, lack of capacity, or breach of fiduciary duty, can be difficult for the lay people of a jury to understand.  For lay people, sometimes the actual law doesn’t always match up to what they may think is right or wrong.  So, when a case actually ends up going to the jury, the temptation for the lawyers litigating it may be to try to drive some last points home through the jury charges by repeating the law several times.

In Burkhalter v. Burkhalter, however, after a jury returned a verdict vindicating an alleged undue influencer, the Court of Appeals of Iowa granted a new trial on the claims because of a faulty jury charge regarding undue influence.  The appellate court found that the charge was either unduly repetitive and therefore faulty or through its

Read More

Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

Authors

Luke Lantta

Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

by: Luke Lantta

Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony.  We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases.  But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues.  If you get an expert, however, there’s still the issue of qualifying him or her.

And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are.  In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on

Read More

Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

Authors

Luke Lantta

Three Of Your Most Important Witnesses In A Lack Of Capacity Or Undue Influence Case

December 14, 2012

by: Luke Lantta

The drafting lawyer.

The attesting witnesses.

The notary.

Time and again the case law suggests to us that these are three of your most important witnesses in defending (or pursuing) a lack of testamentary capacity or undue influence case.  Yet, we sometimes don’t put a lot of thought into who will be our attesting witnesses or notary and how they might come across as witnesses at trial.

In Amerson v. Pahl, decided by the Georgia Supreme Court, we get to see again how a case turns on the testimony of these three witnesses.

Read More

Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

Authors

Luke Lantta

Should A Testator Explain Why She Disinherited A Child?

October 29, 2012

by: Luke Lantta

Hell hath no fury like a disinherited child.  Or, if not fury, then at least an appetite for litigation.

Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause.  That way the disinherited child stands to lose something if he or she pursues estate litigation.  Of course, that doesn’t always work.  Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.

So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?

In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she disinherited two of her children.

Read More

Videotaped Execution Of Will Pays Off

October 2, 2012

Authors

Luke Lantta

Videotaped Execution Of Will Pays Off

October 2, 2012

by: Luke Lantta

There is almost never anything good that can be gained by videotaping the execution of a will.  Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video.  One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.

If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.

Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.

So, what good stuff was on the tape of Ruth Chancey

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.