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School
Rasmussen College, Minneapolis *
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Course
104
Subject
Law
Date
Feb 20, 2024
Type
docx
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2
Uploaded by MajorStrawCaterpillar24
Your supervising attorney has asked you to sit in on the finalization and signing of a will by a very wealthy client, John Bender. Mr. Bender is ninety-one years old, and has decided to write his son out of the will. He believes his son, Mark, is wasting his life, and Mr. Bender does not want to provide him with the means to continue to do so after he is gone. Instead, he has decided to leave half of his estate to his granddaughter Tracy, and the other half to the Humane Society. When finishing the discussion about his will, Mr. Bender refers to his granddaughter as “Trixy” instead of Tracy, and discloses that he was recently in the hospital for pneumonia. In your initial discussion this week, you should discuss whether there is cause for concern over Mr.
Bender’s capacity to be signing the will, and whether there are any ethical issues you are concerned about. Your discussion should be supported by legal research from your home state.
In a reply post to your classmate, you should discuss ways in which you could ensure that the client has the proper capacity to be signing the legal documents. What steps could you take to ensure there would not be a will contest for lack of capacity?
Due dates for your initial and response posts can be found by checking the Course Syllabus
and Course Calendar
.
Responses (10)
2/15/24, 10:12 AM NEW
Hello Students,
The Nevada Supreme Court addressed this issue in In re Estate of Mallas v. Mallas
, 2012 Nev. Unpub. LEXIS 1481.
Nev. Rev. Stat. 133.090(2) provides: Every person of sound mind and over the age of 18 may create a valid holographic will. When considering the meaning of "sound mind" as it relates to testamentary capacity, California courts provide guidance. Testamentary capacity exists when the testator: (1) comprehends the nature of the act he is doing, (2) recollects and understands the nature of his property, and (3) recognizes his relations to the persons who would inherit via intestacy. In re Lingenfelter's Estate, 38 Cal. 2d 571, 241 P.2d 990, 997 (Cal. 1952).
Testamentary capacity is always presumed to exist unless the contrary is established. Moore v. Anderson Zeigler, 109 Cal. App. 4th 1287, 135 Cal. Rptr. 2d 888, 900 (Ct. App. 2003). The requisite mental capacity to execute a will is presumed by law. The party arguing lack of testamentary capacity must produce evidence to rebut the presumption of capacity.
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