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How to show diminished capacity in estate litigation cases

If you have recently lost a loved one, it is likely that you are having to deal with their estate plan at the same time as grieving their loss. Both of these processes can be difficult and overwhelming to manage, and you may feel that you are particularly stressed, sensitive or unstable when you are going through this difficult time.

This feeling can be exasperated when you are also dealing with a dispute. If you believe that the will that your loved one left behind did not reflect their true wishes, you should consider taking action to defend their legacy and get justice.

You may have decided to challenge the will because the will was changed shortly before your loved one’s death when they were in a frail or disorientated state. You may believe that they were not in sound mind to make such a big decision and did not understand the consequences of their actions. You may also be of the belief that another person used their frail state to manipulate them and unduly influence them to change their will. The following is an overview of where the law stands regarding these issues.

How to prove that your loved one had diminished capacity when making the will

You must be able to show that your loved one lacked what is known as testamentary capacity. In other words, they did not understand the nature of their property, that they were not aware of their heirs and that they could not comprehend that they were making a will.

Bringing in the concept of undue influence

In a case of diminished capacity, it is often the case that another person influenced the testator and convinced them to change their will. If done coercively, this is known as undue influence. Therefore, you may be able to make two challenges to the will.

Take swift action to challenge a will so that you have the best chance of doing so successfully.