Also known as: testamenti factio · testamentary capacity · capacity to make a will
Written by attorneys — see sources below.
An ancient Roman law doctrine that encompassed three distinct capacities: the power to make a valid will, the power to receive property under a will, and the power to serve as a witness to a will.
Fiona Foster, age seventeen, hand-signed a letter directing her structured settlement annuity to her stepbrother. Because Fiona had not reached the age of majority, the letter lacked the capacity required for a valid will and was treated as void.
Fumiko Fujimoto executed a beneficiary designation shortly before her death. When the insurer challenged the designation on capacity grounds, the court examined whether she possessed the mental ability to understand the nature of the act at the time of execution.
In March 1879, John W. Hillmon, the insured under several life insurance policies, was reported to have died during a trip through southern Kansas. His widow brought three separate actions in the Circuit Court of the United States for the District of Kansas against the Mutual Life Insurance Company and other insurers to recover the policy proceeds. The central dispute at trial was the identity of the body found at Crooked Creek on the night of March 18, 1879. The plaintiff introduced evidence that Hillmon and a companion named Brown had left Wichita, Kansas, on or about March 5, 1879, while traveling in search of a cattle ranch site, and that Hillmon had been accidentally killed at their camp on March 18. The defendants introduced evidence that a man named Walters had left his home and betrothed in Iowa in March 1878 and remained in Kansas until March 1879. During that period Walters corresponded regularly with his family and betrothed. The last letters received from him were one postmarked at Wichita on March 2 and received on March 3, and another received about March 4 or 5 and dated at Wichita a day or two earlier. He had not been heard from since. The Circuit Court consolidated the three actions for trial. The defendants offered two letters written by Walters on the first days of March 1879, which the court excluded. After verdicts for the plaintiff, the defendants appealed to the Supreme Court.
View caseFelix Franco left a holographic document disposing of his estate. His estranged sibling contested probate, presenting evidence of memory lapses and confusion in the months before death to show that Felix lacked the understanding necessary to form a valid testamentary plan.
Vickie Lynn Marshall, also known as Anna Nicole Smith, met J. Howard Marshall II in October 1991 and married him on June 27, 1994. J. Howard died on August 4, 1995. Although he had given Vickie substantial gifts and money during their relationship, his will made no provision for her. Vickie maintained that J. Howard had intended to secure her future through a catchall trust. Respondent E. Pierce Marshall, one of J. Howard’s sons, stood as the sole ultimate beneficiary under his father’s estate plan, which consisted of a living trust and a pourover will directing all remaining assets into the trust. In January 1996, while J. Howard’s estate remained subject to probate proceedings in Harris County, Texas, Vickie filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Central District of California. In June 1996 Pierce filed a proof of claim in that bankruptcy case asserting that Vickie had defamed him through statements made to the press shortly after J. Howard’s death. Vickie answered and asserted a counterclaim alleging that Pierce had tortiously interfered with her expected gift by imprisoning J. Howard against his wishes, surrounding him with hired guards, making misrepresentations to him, and transferring property contrary to his expressed intentions. The Bankruptcy Court granted summary judgment to Vickie on Pierce’s defamation claim. After a trial on the merits it entered judgment for Vickie on her tortious interference counterclaim and awarded her more than $449 million in compensatory damages, less any amount recovered in the Texas probate action, plus $25 million in punitive damages. Pierce then moved to dismiss for lack of subject-matter jurisdiction, arguing that the claim belonged exclusively in the Texas probate proceedings. In the Texas Probate Court, Pierce sought a declaration that the living trust and will were valid. Vickie initially challenged the instruments and asserted her own tortious interference claim there but voluntarily dismissed both claims after the Bankruptcy Court’s judgment. Following a jury trial the Probate Court declared the trust and will valid. On review of the Bankruptcy Court’s judgment the District Court rejected the probate-exception argument. The court adopted the Bankruptcy Court’s findings with supplements. It awarded Vickie approximately $44.3 million in compensatory damages together with an equal amount in punitive damages. The Ninth Circuit reversed. It held that the probate exception barred federal jurisdiction because the claim raised questions ordinarily decided by a probate court and because the Texas Probate Court had asserted exclusive jurisdiction over all of Vickie’s claims. The Supreme Court granted certiorari in 2005.
View caseFernando Farrell retained counsel to draft a will that ultimately failed due to execution defects. The beneficiaries sued the drafting attorney, alleging that the attorney failed to ensure the testator possessed the requisite capacity and formalities at the time of execution.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
View caseThe doctrine included the capacity to make a will, the capacity to receive property under a will, and the capacity to witness a will. Each aspect was necessary for full participation in testamentary matters.
A minor lacks the legal capacity to make a will. The Restatement treats any such instrument as void from the outset, providing a bright-line rule that protects minors and ensures certainty in probate.
No. The Restatement requires a formal emancipation decree. Living apart, managing finances, or making medical decisions does not remove the age-based incapacity rule.
Modern statutes and the Restatement continue the core principle that a person must possess the mental ability to understand property, beneficiaries, and disposition. The Roman doctrine supplied the historical foundation for these requirements.
…and we will so consider the point. The petition charged that testator was not of sound mind and did not have the mental capacity to make a will. The transcript contains more than 1,100 pages and there are a large number of exhibits. We will state the facts as briefly as possible and we think they will clearly support our conclusion…