Legal Question in Wills and Trusts in West Virginia
capacity to make decisions
Father died in March 2008 Mom died 6 mo later Sept. Was in mental hospital from April 30 to May 6th. Dr said she was capable of making medical decisions.Daughter had new will drawn up while she was in hospital leaving out everyone but her was signed on May 7th. In the new will it states she is still married to dad not a widow is all of this legal? She also was back at the mental hospital 2 more times and was put in a nursing home.Should we get a lawyer and protest the will
1 Answer from Attorneys
Re: capacity to make decisions
Testamentary capacity to make a will is well defined in West Virginia Caselaw. It is a jury question. The test is not the same test as may be employed by a physician with regard to medical decisions. A second factor appears in your question. That is, that the single beneficiary of the will apparently had the will drawn up. In those circumstances, the burden of proof as to competency is on that person. The shifting of the burden of proof in a civil case in important and will make the difference in a close case. These highly suspicious circumstances would require that you hire a lawyer and pursue the truth.
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