The elements of testamentary capacity to make a will under North Carolina law are that the testator:
- Comprehends the natural objects of his bounty;
- Understands the kind, nature and extent of his property;
- Knows the manner in which he desires his act to take effect; and,
- Realizes the effect his act will have upon his estate.
Does a Presumption of Capacity Exist Under North Carolina Law?
Yes. Under North Carolina law, a testator is presumed to have testamentary capacity. Caveators (those challenging the validity of the will) have the burden of proving by the preponderance of the evidence that the testator lacked such capacity. See In re Will of Jarvis, 334 N.C. 140, 146 (1993).
How Do You Prove Lack of Testamentary Capacity Under North Carolina Law?
To establish that a North Carolina testator lacked testamentary capacity, a caveator must show that at least one of the essential elements of testamentary capacity is lacking. See In re Will of Kemp, 234 N.C. 495, 499 (1951).
General testimony concerning the testator’s deteriorating physical health and mental confusion in the months before the execution of the will is not enough to establish a lack of testamentary capacity. A caveator is required to present specific evidence relating to the testator’s understanding of his property, to whom he wished to give it, and the effect of his act in making a will at the time the will was made.
Evidence of the testator’s general capacity may be presented by anyone with opportunity to observe the testator. Witnesses might include friends of the testator who spent time with the testator around the time that the will was executed, caregivers, doctors, and the drafting attorney and witnesses to the will.
Medical records are also commonly used as evidence of testamentary capacity or the lack thereof.
The lack of sufficient testamentary capacity may not be presumed from the mere fact a person is old, feeble, eccentric, intellectually weak, physically infirm, or makes what others might consider an unwise, unreasonable or unjust decision concerning his property.
The Standard for Testamentary Capacity Is Very Low
The standard for testamentary capacity to make a valid will under North Carolina law is very low. To prove a lack of testamentary capacity, it is critical to show that the testator lacked capacity at the time the will was made. In In re Estate of Whitaker, the court stated:
“A testator has testamentary capacity if he comprehends the natural objects of his bounty; understands the kind, nature and extent of his property; knows the manner in which he desires his act to take effect; and realizes the effect his act will have upon his estate.” Matter of Will of Buck, 130 N.C.App. 408, 412, 503 S.E.2d 126, 130 (1998), affirmed, 350 N.C. 621, 516 S.E.2d 858 (1999) (citing In re Will of Shute, 251 N.C. 697, 111 S.E.2d 851 (1960)).
In Buck, this Court noted that the caveators had presented “ample evidence ․ indicative of testator’s declining mental and physical health in the months preceding his execution of the proffered will.” Id. at 413, 503 S.E.2d at 130. However, we held that the caveators could not establish lack of testamentary capacity where there was no specific evidence “relating to testator’s understanding of his property, to whom he wished to give it, and the effect of his act in making a will at the time the will was made.” Id. (citation omitted) (emphasis supplied). We stated:
In the present case, caveator presented only general testimony concerning testator’s deteriorating physical health and mental confusion in the months preceding the execution of the will, upon which her witnesses based their opinions as to his mental capacity. However, her evidence, while showing testator’s weakened physical and mental condition in general, did not negate his testamentary capacity at the time he made the will, i.e., his knowledge of his property, to whom he was giving it, and the effect of his act in making a will. Therefore, caveator’s evidence was insufficient to make out a prima facie case of lack of testamentary capacity. Id.; see also, Matter of Will of Maynard, 64 N.C.App. 211, 227, 307 S.E.2d 416, 428 (1983), disc. review denied, 310 N.C. 477, 312 S.E.2d 885 (1984) (recognizing that “the insane person during a lucid interval can make a valid will.”).
The takeaway: If you are going to challenge a will on the ground that the testator lacked testamentary capacity, be sure to present evidence that the testator lacked such capacity at the time the will was made by presenting specific evidence to show that at least one of the elements required to have testamentary capacity under North Carolina law is lacking.