Elder Law Commons^™

Will contests involving testators with diminishing capacity present a number of challenges to attorneys and courts. One such challenge is the fact finding process to balance concurrent allegations of testamentary incapacity and undue influence. While a lack of testamentary incapacity and undue influence are two distinct grounds for avoiding a will, many courts have had conflicting opinions on whether a finding of undue influence is dependent upon a finding of requisite testamentary capacity or whether the two findings are mutually exclusive. This article attempts to provide a general understanding of basic concepts and theories relating to will contests of testators …