In Idaho, “[a]ny emancipated minor or any person eighteen (18) or more years of age who is of sound mind may make a will.” Idaho Code 15-2-501. When determining whether a person is of sound mind, Idaho Courts have stated:
Accordingly, a testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of persons who are to be the objects of his bounty, and his relation towards them. Wooden v. Martin (In re Conway), 152 Idaho 933, 943-944, 277 P.3d 380, 390-391 (2012).
Often times when there is a will contest different members of the family may be called to testify about whether or not a person had capacity to create a Last Will and Testament. These witnesses will testify to show whether or not the person knew what it was they were doing.
In this situation, it is not uncommon for an attorney to be called to testify about the person creating the Last Will and Testament. This makes sense because the attorney who helped create the Last Will and Testament should have spent ample time with the individual and should be able to talk about how they acted, what they said, and whether or not they knew what they were doing.
In the Martin, case cited above, the Estate Planning attorney was called as a witness to testify about the decedent’s capacity at the time she made and signed her Last Will and Testament. Recalling their first meeting, the attorney described her as “alert,” “perky,” not distracted, and said she correctly answered questions about her family members, the value of her estate, and the current date. He did not notice any change in her faculties throughout the three meetings they had together. Further, the attorney testified that the two had a “continuing discussion” about her assets at their meetings. He also recalled that he spoke with the decedent at the signing of her Last Will and Testament long enough to test her testamentary capacity. Wooden v. Martin (In re Conway), 152 Idaho 933, 944, 277 P.3d 380, 391 (2012).
The essential from the case listed above is that the estate planning attorney can be called as a witness to testify about a decedent’s capacity at the time they sign their Last Will and Testament.
If you have questions about your Last Will and Testament, or the capacity of a family member who recently signed a Last Will and Testament, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Estate Planning questions and will help you solve your Idaho Estate Planning problems.
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