What does it take, in terms of mental capacity, to be able to make a will in Ohio? To create a trust, make a gift, or to form a limited liability company (LLC) for estate planning purposes? The answer to these questions is at the heart of many challenges to Ohio estate plans.
A will is only valid if the person making it, known as the testator, had "testamentary capacity." But what exactly is testamentary capacity, and when does a test for it apply? Does an individual need greater capacity to make a will than, for instance, to make a lifetime gift?
Unfortunately, Ohio law does not have a statute on the books setting forth the test of capacity for using various estate planning documents and making certain transfers. Attorneys and judges must rely on the common law, and while there is some case law on the capacity to make wills, there is much less regarding the definition of capacity to create a trust, an LLC, a power of attorney (POA), or a gift.
The issue of testamentary capacity comes up most frequently with regard to will challenges. If a testator did not have testamentary capacity at the time of making the will, the will is not valid. In Ohio, the test for testamentary capacity set forth in Niemes v. Niemes, 97 Ohio St. 145 (1917), requires that the testator:
In Ohio, a testator whose mind is impaired "by disease or otherwise" may still have capacity to make a will, so long as the four criteria listed above are met. The general rule is that the mental condition of the testator at the time of making the will is what matters to testamentary capacity, and evidence of his or her condition within a reasonable time before or after making the will is admissible in court on the issue of mental condition at the time of making the will.
For instance, if close friends of the testator testified that the day before the will was made, the testator appeared to be hallucinating, and did not know who they were or his own name, that might be relevant evidence of his mental condition the next day. The burden of proof is generally on the party contesting the will on the basis of lack of testamentary capacity. However, in Ohio, there is a rebuttable presumption that a person under guardianship lacks testamentary capacity. This presumption can be overcome somewhat easily with evidence to the contrary.
This last point is relevant because many older Ohioans may be under a guardianship due to mental decline, but that decline may not be severe enough to mean that they don't meet the criteria for testamentary capacity. Even individuals with some forms of dementia have moments of greater clarity as well of those of deeper confusion.
If there is any chance that the testamentary capacity of a testator might be challenged, those supporting the testator, including the estate planning attorney, should take measures to check for testamentary capacity and to document it. Simply asking the testator his name, the date, and why he is present at the office can provide evidence of capacity.
Documenting evidence of testamentary capacity may be sufficient for overcoming a will contest based on lack of capacity. But what if an interested party wants to challenge another estate planning document. Is "testamentary capacity" the applicable test?
Regrettably, Ohio law is far from clear on that point. Attorney Ted Gudorf recently testified in an unreported Ohio case that addressed the issue of capacity. Because the case was unreported, it does not offer a binding precedent. However, the judge in that case agreed with Ted Gudorf's testimony that the test for wills and trusts should be testamentary capacity, and that the threshold for forming an LLC for estate planning purposes should be whether the creator had capacity to make a contract. (Contractual capacity requires the ability to understand what one is agreeing to; the capacity required for entering into a contract is generally higher than that required to make a will. )
The unreported case did not address the question of what capacity might be required to validly execute a power of attorney or to make a gift during one's lifetime.
The bottom line is that if there is a concern about an individual having diminished capacity to execute an estate planning document, the signing should be scheduled for a time when the individual is expected to be most lucid. Further, steps should be taken to document that the individual was asked questions to confirm testamentary or contractual capacity, and that those questions were answered appropriately. You may also want to look into something called ante-mortem procedure, which allows wills and trusts to be declared valid before their maker dies.
If you have questions about capacity to execute estate planning documents, schedule an appointment with an experienced Ohio estate planning attorney.