Thomas McCutcheon

Will contests can be good cases.  I have tried several cases, some with a jury and some without a jury.  

First, an attorney looks to see whether or not the Will in question was properly witnessed and executed.  

Next, we ask about the legal capacity of the person making the Will to make a Will.  

A person has the legal capacity to make a Will when he or she knows his or her estate and the property to be devised and bequeathed, 2) knows the natural objects of his or her bounty, and 3) understands that he or she is making a Will.  Smith v. Vice, 641 So.2d 785, 786 (Ala.1994).  The key inquiry is whether the testator (person making the Will) had testamentary capacity on the day the Will was executed, which may be inferred from a witness’s observation of the testator’s mental and physical condition either before or immediately after execution of the Will.  Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978). 

Last, a Will may be contested if there is undue influence.  In order to establish a prima facie case of undue influence, the person contesting the Will is required to offer evidence 1) that a confidential relationship existed between a favored beneficiary and the testator; 2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and 3) that there was undue activity on the part of the dominant party in procuring the execution of the Will.  

If prescription medication is alleged to deprive the person making the Will of the capacity to make a Will, the party must produce evidence showing 1) the specific medication the testator was taking at or around the time he or she made the contested testamentary decision and 2) how that medication affected the testator’s mental acuity.  Maxwell v. Dawkins, 974 So.2d 282, 287 (Ala. 2006). 

Buckle up, drive safely, and as always, your referrals are appreciated! 256-764-0112

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