Testamentary capacity is required in every jurisdiction to execute a valid will. There is little variation in what that means substantively, but significant variation in standards and burdens of proof. I have argued that someone challenging a first will should have the burden to prove incapacity by clear and convincing evidence (here). A minority of jurisdictions follow this approach, which better effectuates testators’ intent. The majority require a showing of incapacity by a mere preponderance.
Massachusetts is even worse. An appeals court there last month affirmed the denial of probate to a will on the ground that the testator lacked testamentary capacity. In re Estate of Galatis (2015 WL 5227413). In accordance with my position and the majority rule, there is a presumption of capacity in Massachusetts and the burden is on the will contestants to show incapacity. However, in Massachusetts, the burden flips to the proponents of the will to show capacity as soon as the contestants present “some evidence” of incapacity.
The proponents of the will in Galatis were unable to meet that burden. The facts illustrate how this flawed burden-shifting approach can lead to bad results. The evidence on incapacity was admittedly mixed: the panel split 2-1. Leaving the burden on the contestant and requiring clear and convincing evidence of incapacity could well have tipped the scales. And probating the will would almost certainly have better advanced testator’s intent. The challenged will was nearly identical to a draft signed by the testator eight days earlier when his capacity was not disputed. And the will contestants who took by intestacy when the will was thrown out were the testator’s cousins–the testator was a widowed only child with no children of his own.
Posted by Fredrick Vars on October 12, 2015 at 10:47 AM