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How does one challenge a Will for lack of testamentary capacity?

Orphans' Court litigation is the way to challenge a Will. Probate of a Will in Pennsylvania is usually a fairly straightforward process. The Will is filed with the Register of Wills and the Executor is appointed to administer the estate, to pay bills and taxes and eventually to distribute the assets according to the terms of the Will. This is how approximately 99 percent of all probate proceedings happen.

But, what if someone is not satisfied with the terms of the Will? What if they wish to formally challenge the Will in Orphans' Court? A formal challenge to a Will is called a will contest. This blog post will provide some basic information about one of the grounds that a disappointed party can use to contest a Will.

One ground to contest a Will involves the question of testamentary capacity. Specifically, a party might argue that the testator lacked the testamentary capacity to make a Will at the time the Will was signed. In order to make a valid Will, a person must be 18 or older and must have testamentary capacity. To have testamentary capacity, testators must know the natural objects of their bounty (such as spouses, children, etc.) and understand the extent and value of their assets. Furthermore, the testator must understand what a Will means and the disposition of assets that the testator is making with the Will.

Adults are presumed to have testamentary capacity. A person with dementia, mental illness or under the influence of a mind-altering substance may not have testamentary capacity. A party contesting a Will should be prepared to prove how any of these issues - or another issue not listed - caused the testator not to have testamentary capacity when the Will was signed.

There are many issues to consider when it comes to contesting a Will. An attorney experienced in Orphans' Court litigation can review a specific situation and provide guidance to disappointed parties as to what is involved in a possible will contest and how to proceed.

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