There are several ways to challenge the validity of a will. Two types of challenges are a lack of testamentary capacity, that is, the lack of physical or mental capacity to make a will, and suspicious circumstances in the preparing and executing of a will.

There are many statements in estate jurisprudence as to the requirements for testamentary capacity. The classic statements come from 19th century English law and are sometimes archaic in expression. Let me express it this way. The testator, who is the person making the will, must have a clear understanding and memory to know, on his or her own, and independent of others: (1) of the nature and the extent of the testator’s real property, such as a house, and personal property, such as a car; (2) of the people or legal entities, such as a charity, that are going to receive the bequest; and (3) of the testamentary provisions in the will to be executed. The testator must also express an orderly desire or intention as to the disposition of the estate property.

When a will is challenged on the basis of testamentary capacity, the burden of proving testamentary capacity is not on those challenging the will but on the proponents of the will, usually the beneficiaries. When proving testamentary capacity, a beneficiary may look to the evidence of the lawyer who drafted the will and the lawyer’s file notes on meetings with the testator. There are two witnesses to a will, usually the lawyer and a staff member, so the evidence of the staff member would also be important. Another source of proving testamentary capacity is the testator’s physician. The clinical notes and records of the physician at the time and before the time of executing the will would be relevant. Medical conditions, such as signs of dementia or Alzheimer’s disease could undermine testamentary capacity.

An allegation of suspicious circumstances, such as undue influence, apparent coercion, or fraud, is often found in estate litigation when a will is being challenged on the basis of testamentary capacity. This is so because a physical or mental debility in a testator may leave the testator exposed to nefarious activity of another swaying the testator such that the testator does not fully appreciate the effect of what is being done in the will. Thus, if testamentary capacity is proven, suspicious circumstances may be defeated.