Probate, trust, guardianship and inheritance litigation
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What Does It Mean To Have Testamentary Capacity In Oklahoma?

To have testamentary capacity to make a will under Oklahoma law, the testator must understand, in a general way:

  1. The quality and quantity of his or her property;
  2. The natural objects of his or her bounty; and,
  3. The legal effect of signing the will.

Challenging a will on the grounds of a lack of testamentary capacity often goes hand-in-hand with an undue influence challenge in Oklahoma.

There is a Presumption of Testamentary Capacity In Oklahoma

A testator is presumed to have testamentary capacity under Oklahoma law.  Lazelle v. Estate of Crabtree, 2009 OK CIV APP 79, 225 P.3d 11, 15 (2009).

The person contesting the testator’s capacity to make a will bears the burden of showing that the testator lacked testamentary capacity to create the will.

Testamentary Capacity Under Oklahoma Law Is a Question of Fact

To prove a lack of testamentary capacity under Oklahoma law, a will challenger needs to provide evidence that a testator did not have capacity to make the will at the time the will was made.

In Hunter v. Battiest, the Oklahoma Supreme Court stated:

There is no rule by which it may be determined, with precision, where capacity ends and incapacity begins. But this question should be determined from all the facts and circumstances of each particular case; and, where the evidence fairly and reasonably supports the findings of testamentary incapacity, the same will not be disturbed on appeal…To prove testamentary capacity it is held that it must be shown that the testator’s mind and memory are sufficiently sound and that the testator has sufficient capacity to comprehend the condition of his property, his relation to the persons who would or should or might have been the objects of his bounty, and the scope or bearing of the provisions of his will.

Evidence of Lack of Testamentary Capacity

Evidence of testamentary capacity can take many forms. Medical records are often used to show testamentary capacity (or a lack thereof).  Testimony from disinterested witnesses is also critical.  Witnesses who knew the testator at or around the time the will was made can testify as to the testator’s demeanor, appearance, behavior, and conversations.  Evidence that the testator handled his own affairs, such as bills, can support a finding of testamentary capacity.

Testimony of the drafting attorney that the testator appeared to have capacity at the time the will was executed is also usually presented to the court.  However, it is the rare occasion where the attorney who drafted the will testifies that he or she had concerns about the testator’s capacity.

Advanced age, weakness, or the fact that a testator needed help with some aspects of daily living does not create a presumption that a testator would be unable to have the requisite testamentary capacity to make a will under Oklahoma law.

In In re Austin’s Estate, the Oklahoma Supreme Court addressed the evidence presented in the probate court as to testamentary capacity, stating:

The evidence relied upon by contestants shows, substantially, that the testator was disposed to be irritable, quarrelsome, eccentric and hard to get along with; that he had hallucinations of being mistreated by his children, and others; that he was unreasonable and arbitrary in his relationship with other people; threatened to eliminate his children from any consideration under his will on account of imaginary wrongs, and on one occasion had stated that if, upon his death, he had as much as a $10 bill he had rather burn it than for his children to receive it. John Cook, a grandson, not provided for in the will, a tenant on testator’s farm, testified that he moved onto the farm in 1937; that testator imagined things were not proper and honest; wanted the witness to leave the farm and terminate the lease and threatened to burn the house unless the witness vacated. That late in December 1937, while witness and his family were away from home, the house did burn. That in December, 1937, the testator suffered a stroke of paralysis, from the effects of which he never fully recovered; that thereafter his mentality became worse, his memory bad, and his conversation disconnected and, at times, meaningless.

Lloyd W. Davis, a disinterested witness, who had known the testator for a number of years, and who operated a drugstore, testified that testator was old and sickly, irritable and unreasonable, imagined that his relatives and others had mistreated him, used a great amount of patent medicines, and was “the most peculiar man I ever saw.”

On the other hand, a large number of disinterested witnesses, most of whom had known the testator for many years and who were more or less intimately and frequently associated with him, testified to the testator’s complete competency to make the will. That subsequent to the paralytic stroke, as before, the testator transacted his own business, discussed and made contracts for the renting of real estate, discussed with neighbors the loaning of his money, and in the meantime attended to the business incident to the sale of a farm at a price, according to some testimony, for more than it was worth. Prior to its execution he disclosed to some of the witnesses his intention to execute a will and named the grandchildren, defendants in error, as beneficiaries. Later, after the will was executed, he advised others of its execution and named the beneficiaries under the will. On the day the will was executed he drove his car, alone, from Weatherford to his attorney’s office in Cordell, a distance of several miles, discussed freely how he wanted the will drawn and the manner of disposition of his property.

In Austin, the Oklahoma Supreme Court affirmed the judgment finding testamentary capacity.  Perhaps the strongest evidence was the number of disinterested witnesses (people who did not benefit under the terms of the will) who testified that the testator told them about the will both before and after its execution, and that testator was completely competent.

It is important to remember that the bar to have testamentary capacity in Oklahoma is very low.  Therefore, a will contestant must be prepared to present strong evidence of a lack of testamentary capacity to prevail in a will contest.

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