To have a guardian appointed, a Court must find a person is impaired and unable to make reasonable decisions regarding his or her person or finances. But how does that affect his/her ability to execute a will?
A person may be able to execute a will in Oklahoma, even if incapacitated or in need of protection through a guardianship, but how do we know for sure? Absent a guardianship, there is a presumption that a person is competent. Does the guardianship change this presumption?
In an Arizona case, “John Smith” had been under guardianship since 2004. In 2008, he requested the guardianship be terminated and was denied. That same
day, John executed a will disinheriting his only child and leaving everything to his grandson, revoking an earlier will that had left his entire estate to her.
When John died, a dispute arose about which document was valid. Did John have the capacity to revoke his old will and disinherit his daughter? The probate court found the new will valid and admitted it to probate. John’s daughter objected and the probate court ruled against her without taking testimony.
The Arizona Court of Appeals disagreed. It said the probate court should have known there was substantial evidence of John’s incapacity; that the guardianship was enough to raise doubts about John’s ability to sign a new will; and the probate court should have taken evidence before reaching its decision.
The Court of Appeals did not say John’s will was invalid or that people under guardianship cannot sign new wills, just that the existence of guardianship proceedings required the probate court to take a second look before deciding if the will was valid.
If you found yourself dealing with a similar situation, please contact us for assistance.
Jerry Shiles
Author, Attorney
Parman & Easterday
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