News & Thought Leadership from Sulloway & Hollis

October 17, 2023

Guidance for Practitioners:
Testamentary Capacity and Undue Influence

In probate litigation, contestants frequently seek to invalidate estate planning documents on the grounds that the decedent lacked capacity and/or was unduly influenced. This post provides a basic introduction to these concepts and explores some of the factors the probate court might consider in resolving a contest.

Testamentary Capacity

New Hampshire law requires that a person making a will (sometimes called a testator or testatrix) possess testamentary capacity. See RSA 551:1 (a testator must be of sane mind). The New Hampshire Supreme Court’s decision in Boardman v. Woodman, 47 N.H. 120 (1866) fleshes out this requirement. Pursuant to the Court’s decision, a testator must:

(i) understand the nature of the will-making act;
(ii) recollect the property to be disposed of and understand its general nature;
(iii) recall the natural objects of his or her bounty; and
(iv) make an election as to the disposition of his or her assets.
See Boardman at 122.

These elements provide the baseline for testamentary capacity. However, if the will is the product of, or influenced by, an insane delusion (i.e., a belief in facts which no rational person could hold), the will may nevertheless be invalid. Thus, to create a valid will, a testator: (i) must satisfy the Boardman standard for capacity; and (ii) must not make dispositive decisions on the basis of an insane delusion. See Estate of Washburn, 141 N.H. 658, 667 (1997).

As a matter of New Hampshire law, the capacity required to create, amend, or revoke a trust is the same as that required to make a will. See RSA 564-B:6-601. Therefore, and in summary, in order to create or effect changes to a will or trust, a person must be able to: understand the import of such act; call to mind the nature and extent of his or her property; and identify his or her most proximate family members. Moreover, the person must be capable of choosing how his or her property should be distributed (and such choices must not be tainted by an insane delusion).

Once the testator dies, the proponent of the will is entitled to a rebuttable presumption that the testator possessed testamentary capacity. See Estate of Washburn at 659. However, in the event an adverse party produces evidence demonstrating a potential lack of capacity, the proponent must persuade the probate court, by a preponderance of the evidence, that the testator did in fact possess testamentary capacity. See Estate of Fuller, 119 N.H. 132, 135 (1979); see also Ross v. Carlino, 119 N.H. 126, 130 (1979) (“In a will contest, the propounding party has the ultimate burden of proof as to every fact which is necessary to the validity of a will.”) (quotation omitted).

Undue Influence

Whether undue influence exists is a question of fact, to be determined based upon a consideration of the following: all the circumstances surrounding a disposition, including the relationship between the parties, the physical and mental condition of the donor, the reasonableness and nature of the disposition, and the personalities of the parties. See Estate of Cass, 143 N.H. 57, 61 (1998). Undue influence is defined as the “use of such appliances and influences as take away the free will of the testator, and substitute another’s will for his, so that in fact the instrument is not the expression of the wishes of the testator in the disposition of the property, but of the wishes of another.” See Albee v. Osgood, 79 N.H. 89, 92 (1918).

The influence exerted must amount to force and coercion, destroying free agency. Moreover, it must appear that the will was obtained by this coercion. See Barlett v. McKay, 80 N.H. 574, 574-575 (1923). In the Bonanno case, though the alleged influencer (“R”) shared a confidential relationship with the settlors, and therefore had the burden of demonstrating the absence of undue influence by a preponderance of the evidence, he was able to meet the burden of proof because:

  • The settlors resisted some of R’s advice;
  • R neither resided with the settlors nor had a strong physical presence in their lives;
  • R neither retained, nor played a major role in working with, the drafting attorney; and
  • R did not attempt to isolate the settlors.
  • See Bonanno v. Bonanno, 317-2017-EQ-00048, Final Order (P.J. King)(2018) at 44-45.

In summary, the probate court will look to the factual context relevant to the creation or modification of a will or trust. If it appears that a third party gained so much control or influence over the decedent that the resulting estate plan does not reflect the decedent’s independent wishes, the court may invalidate the challenged document.