To void a gift based upon challenging the mental competency of the donor is very difficult. A party must have a “sane mind” to make a valid testamentary instrument. See RSA 551:1. To make a valid testamentary instrument, the testator must, at the time the instrument is executed, have the ability to understand the nature of the act, understand the property which they are disposing, and understand who their nearest relatives are and to whom he or she would bestow their property upon. See Boardman, 47 N.H. at 122. A testator is presumed to be of sound mind when an instrument is executed. In re: Estate of Fuller, 119 N.H. 132, 135 (1979).
The proponent of the instrument need offer no evidence showing the testator had the requisite capacity to make a will. Charles deGrandpre, New Hampshire Pract. – Probate & Estate Admin., § 44.5 (2008). Like a claim of undue influence, the party seeking to overturn the instrument has the burden of producing sufficient evidence to overcome the presumption of sanity. Id. A person’s testamentary capacity is determined as of the time the instrument is executed. Hardy v. Merrill, 56 N.H. 227, 243 (1875).
Mere weakness of memory or understanding does not show lack of capacity. Lord v. Lord, 58 N.H. 7, 11 (1876). However it is possible that a donor has the mental competence to make a gift yet is subjected to undue influence in making the gift to a particular donee. Please refer to my article on undue influence for that analysis under New Hampshire law.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].