Testamentary Capacity, Undue Influence and Validity of Wills (Portfolio 824)


Angela Gilmore

Associate Dean for Academic Affairs and Professor of Law

North Carolina Central University School of Law


Elena Marty-Nelson

Professor of Law

Nova Southeastern University Law Center


Eloisa Rodriguez-Dod

Professor of Law

Florida International University

At a glance

I. Introduction
II. Formalities of Execution
III. Testamentary Capacity and Undue Influence
IV. Will Contests: Precautionary Measures and Litigation Considerations


Tax Management Portfolio, Testamentary Capacity, Undue Influence and Validity of Wills, No. 824, addresses the requirements for the execution of a valid will, a critical element in the implementation of a successful estate plan. If a will is to be recognized as valid, it must comply with the formalities of execution under state law and the testator must have the necessary testamentary intent. The Detailed Analysis discusses the formalities of execution in depth, since the validity of a will depends upon adherence to the requirements of the jurisdiction in which the will is executed as well as that in which it is ultimately probated.

The discussion begins with the historical background to will formalities. Much of the discussion of current law is based on the provisions of the 1969 Uniform Probate Code and the 1990 Revised Uniform Probate Code, which form the basis of most state statutes. In addition, the Portfolio provides summaries of the execution requirements of all 50 states and the District of Columbia, as well as the choice of law rule in each jurisdiction. Finally, the authors provide detailed, practical suggestions for ensuring that a client's will complies with the relevant execution requirements so that it withstands any subsequent challenge.

Even if a will is executed with the necessary formalities, it is still subject to challenge if the testator did not have the required testamentary capacity at the time of execution or was subject to undue influence. This Portfolio addresses both of these issues, again relying upon the Uniform Probate Code, the Revised Code, and state law. The law of testamentary capacity in Kentucky, Pennsylvania, Florida, and Colorado is explained in more detail as a way of demonstrating the varying standards in the states, and there is a similar examination of Florida, Wisconsin, and Kentucky law with respect to undue influence.

In its final section, the Detailed Analysis addresses issues that are significant in will contests, with suggestions for drafting and executing wills in a manner that will avoid such contests. The authors highlight a number of situations that are at an especially high risk of leading to will contests, and prescribe additional precautions that can be taken in those cases. They also discuss the ethical issues that may be faced by attorneys when preparing wills and when representing an estate in a will contest.

This Portfolio may be cited as Marty-Nelson, Gilmore, and Rodriguez-Dod, 824 T.M., Testamentary Capacity, Undue Influence and Validity of Wills.

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