Legal Question in Wills and Trusts in Pennsylvania

Every will starts out with the statement, "I, (Name of Testator), being of sound mind, do hereby make, publish, and declare this to be my Last Will and Testament ...etc".

In other words, the Testator is stating and declaring that he is of sound mind and is capable of making a will. This is a very difficult statement to overcome by anyone wishing to challenge the Testator's competency.

In order to successfully challenge a will and have the Court set it aside, you would have to prove that your father was not mentally competent at the time he executed his will. This is very difficult to prove and Courts are not willing to set a will aside simply because he chose not to include his children in his will. I am not saying that it cannot be done, however, I am saying that there is a legal presumption that an individual is mentally competent to make a will, and your burden would be to overcome this presumption by a showing of words and deeds that your father was not mentally competent at the time he made the will, or that he was subject to undue influence, or duress, to the extent that his will was not his "voluntary act and deed", as the will recites right above the signature of the Testator. Let me know if you need anything further.

ANDREA G. TILLIS

I agree with Attorney Tillis. I write only to offer the following as you seem to think being a child gives you some kind of special rights. It comes as a shock to most children to learn that they have no rights to inherit from a parent. Its your father's assets to dispose of as he wished. If he chooses, he can completely disinherit you and leave everything to new wife or his favorite charity. Those are the breaks provided your father is mentally competent and there is no fraud or other undue influence involved.

The only person who cannot be disinherited IS the current wife. So if your father is of sound mind and made a will making new wife the beneficiary, that is his right to do so and any will caveat is not likely to succeed. And the cancer diagnosis is meaningless. There are many forms of cancer and not all of them implicate the brain or your father's ability to make a will. The testamentary capacity required to make a valid will is fairly low - a person need know only what they own and owe and the natural objects of their bounty, i.e., who would stand to inherit the property.

As noted by Attorney Tillis, if your father was induced to make a new will at a time when he suffered from some mental defect (like dementia) or if he was under some improper influence by his current wife (say she forced your father to make a will in her favor leaving all to her) then yes, the will could be challenged. You would have to have proof of this though. You would need to talk to your father's doctors to know if he had a mental condition affecting his ability to make a will. You would also have to talk to other friends, relatives or neighbors who see your father with his new wife and can attest that your father was afraid of her. If your father and the new wife have a loving relationship, then its going to be hard to prove fraud or undue influence.