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Questions About ‘Capacity’ Can Lead to Estate Litigation in Arizona

By Zachary Mushkatel on

Our Phoenix estate planning lawyers discuss ‘Capacity’ and estate litigation in Arizona.

For anyone in Arizona who recently created and/or modified an estate plan, or if a family member recently passed away with an estate plan in place, it is important to understand how questions about “capacity” can potentially lead to estate litigation in our state. What do we mean when we say “capacity”? In brief, we are referring to something known as “testamentary capacity.” As a definition from the Cornell Legal Information Institute (LII) explains, testamentary capacity is “the ability of a person to make a valid Will.” In other words, does the person making a will have sufficient testamentary capacity in order for the court to say that the will is valid?  The same question or test applies equally to revocable living trusts. Different states have different legal requirements for testamentary capacity, and Arizona is no exception. In the event that a deceased person’s will or trust is contested due to capacity—if another party argues that the maker of the will or trust did not in fact have sufficient testamentary capacity to make a valid will or trust —then estate litigation can ensue. This article will focus on how testamentary capacity and undue influence can impact an estate plan and lead to litigation.

Questions About a Senior’s Capacity Can Impact Estate Plans

According to a fact sheet from the Administration on Aging (AoA), the population of adults aged 65 and older is rising, and as of 2014, that population accounted for 46.2 million people or almost 15 percent of our country’s total population. By the year 2060, the AoA estimates that the number of adults aged 65 and older will be around 98 million, more than double the number cited in 2014. Given the growing number of seniors in Arizona and across the country, it should not come as a surprise that such a large portion of Americans currently are living dementia. According to the Alzheimer’s Association, more than 5 million Americans are living with Alzheimer’s and 1 in 3 seniors will die with a diagnosis of Alzheimer’s or some other form of dementia. As the population continues to age, and more seniors are diagnosed with dementia, it is important to have a clear idea of when estate plans can be tainted by a lack of testamentary capacity or undue influence. In order to do this, adult children with older parents should learn more about the requirements for testamentary capacity in Arizona, and what kinds of situations may look like undue influence.

What is Testamentary Capacity in Arizona?

When a party (or parties) questions the validity of a Will, estate litigation is likely to result. One of the ways in which a party can challenge the validity of a Will in Arizona is by arguing that the deceased did not have the necessary testamentary capacity. We mentioned above that testamentary capacity simply refers to the ability of a person to make a valid Will. The legal test to determine whether someone has capacity arises from a decades-old Arizona case, In re O’Connor’s Estate, 74 Ariz. 248 (1952). In deciding whether or not Ms. O’Connor had the necessary testamentary capacity to create her Will, the Arizona Supreme Court developed the test still used today to determine. The Court’s test requires a person to cross what is widely seen as a relatively low threshold. The elements of the test are as follows:

  • At the time of executing the will, did the person understand the nature of the act she or he was completing?
  • Did the person understand the nature or character of his or her property?
  • Did the person understand who her heirs would be and how the will would affect those heirs?
If the answer is “yes” to each of these three questions, then the adult creating the Will is said to have had testamentary capacity. In other words, the Will is valid. As such, adults who suffer from dementia may still can have testamentary capacity, just as long as they understand the three elements discussed above. Testamentary capacity is determined at the time that the deceased actually sat down to write out and/or sign the Will —the time at which they put pen to paper, so to speak. As such, even a person that may lack capacity at certain moments during his or her later life—such as a patient suffering from Alzheimer’s disease—he or she still can have a lucid moment that allows for the writing of a valid Will. Such a “lucid interval” was discussed by the Arizona Supreme Court in In re Estate of Shumway, 198 Ariz. 323 (2000). However, just become someone is experiencing a lucid interval does not mean that the Will is necessarily valid as there are other factors to be considered by a Court including, but not limited to, allegations of undue influence.

What is Undue Influence in Arizona?

According to a definition from the Cornell LII, undue influence claims arise when there are questions about whether one party unduly “puts the free will of one of the parties [involved in the contract, or the making of a will] into question.” Often, undue influence is proven by showing that “one party to the contract is a person with weaknesses which make him likely to be affected by such persuasion.” Moreover, “the party exercising the persuasion is someone in a special relationship with the victim that makes the victim especially susceptible to such persuasion.” Under Arizona law, A.R.S. § 14-2712(E), a Will is presumed to be the product of undue influence if someone in a confidential relationship with the creator of the Will is active in procuring the Will, active in the signing or execution of the Will, and is a principal beneficiary of the Will.  Additionally, a Will is presumed to be the product of undue influence if the person that actually writes the Will, his or her spouse, parents, children, and/or grandchildren are a principal beneficiary of the Will. When determining whether undue influence has occurred, the Court will weigh a number of different factors, including the following cited by the Arizona Supreme Court in In Re McCauley’s Estate, 101 Ariz. 8 (1966):

  • Whether the alleged influencer has made fraudulent representations to the person executing the Will;
  • Whether the execution of the Will was the product of hasty action;
  • Whether the execution of the Will was concealed from others;
  • Whether the person benefited by the Will played an active role in drafting the Will and executing it;
  • Whether the Will is inconsistent with prior estate planning document made by the deceased;
  • Whether the elements of the Will are reasonable given the deceased’s circumstances, attitudes, and family;
  • Whether the deceased was susceptible to undue influence; and
  • Whether the deceased the person benefited by the Will had been in a confidential relationship.

Contact a Phoenix Estate Planning Lawyer

If you have questions or concerns about estate planning or estate litigation, an experienced Phoenix estate planning lawyer in can assist you. Contact Mushkatel, Robbins & Becker, PLLC, to learn more about our services.