Burden of Proof as to competency

A competent testator or settlor may dispose of his or her property as he or she wishes, without regard to the desires of prospective beneficiaries or the views of anyone else, as long as the document’s terms are not prohibited by law or contrary to public policy.

The testator is presumed sane and competent and the contestant has the burden of proving by a preponderance of the evidence that the testator lacked testamentary capacity at the time the will was signed.

The same general presumption of competence exists with respect to the execution of trusts.If a testator had a mental disorder but had lucid periods, there is a presumption that the will was executed during a period of lucidity.

Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable (and might even be a presumption) that the incompetency continued to exist at the time the instrument was signed.