Olshefski Case: Testamentary Capacity In Court Case

What is a sound mind? Would that I knew. In Pennsylvania, a person is considered to have testamentary capacity, that is, having the soundness of mind required to make a will, if he “appreciates, in a general way knows who his relations are and what property he possesses, and indicates an intelligent understanding of the disposition he desires to make of it.” In re Olshefski’s Estate 337 Pa. 420 (1940). An executed will is presumed to be signed by a person with capacity. The burden of proving incapacity is on the contestant of the will. It is the best practice for the attorney who draws a will to meet in person with the testator, privately, and also for the attorney to supervise the signing of the will. The attorney who prepares a will
The attorney should also supervise the execution of the will so that the opinion about capacity can be revisited based on the client’s capacity at that time. If a contest is suspected, the attorney should have the witnesses and notary take notes of conversation at the signing. Old age and its various infirmities do not give rise to incapacity. A person can have memory lapses, be unable to recognize acquaintances, and have trouble speaking and still have testamentary capacity. Rambling or repetitive speech may not signal incapacity. The person making the will can be blind, with impaired hearing, or paralyzed. None of these things constitute lack of testamentary capacity. The statute of wills makes express provision for signing a will by a mark, and if even a mark cannot be made, for another person to sign the will for the testator at the testator’s
Undue influence involves acts by a person attempting to influence a will which does not represent the testator’s true wishes. Undue influence sufficient to void a will must be “imprisonment of the body or mind, fraud, or threats or misrepresentations or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of the will” Koons’ Estate, 293 Pa. 465 (1928). If the client seems to say, “I don’t want to do this, but I must,” undue influence might be