50 State Testamentary Capacity Project: Kansas Testamentary Capacity Expert Definitions

In an effort to provide a better understanding for what testamentary capacity expert psychologists look for when forming opinions about whether the person had testamentary capacity in the execution of a will, trust, beneficiary designation, or other testamentary contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Sixteenth up, Kansas.

In re: Estate of Oliver, 23 Kan. App. 2d 510 (1997)

It is the established rule in Kansas that a testator possesses testamentary capacity if, on the date he or she executes the instrument which determines the manner in which property will be disposed after death, he or she knows and understands the nature and extent of that property, has an intelligent understanding concerning the disposition he or she desires to make of it, realizes who his or her relatives are and the natural objects of his or her bounty, and comprehends the nature of the claims of those whom he or she desires to include in and exclude from participation in worldly effects after he or she has no further need for them (citing In re Estate of Ziegelmeier, 224 Kan. 617, 621, 585 P.2d 974 (1978)).

The critical time in determining testamentary capacity is when the will is made and executed. All other evidence concerning the testator's mental capacity before or after the time of execution is only an aid in deciding the issue (citing In re Estate of Barnes, 218 Kan. 275, 281, 543 P.2d 1004 (1975)).

The mere fact that a person suffers from senile dementia does not mean that person lacks testamentary capacity (citing In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982)). 

The test of a testamentary capacity is not whether a person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body (citing In re Estate of Perkins, 210 Kan. at 626).

A conservatee, whether voluntary or involuntary, retains the right to decide how his or her property is to be distributed upon death. This right includes the power to change beneficiaries on payable on death accounts as well as make wills.

Once it has been shown that a will has been executed in accordance with the formalities required by law, the burden is upon the will contestant, who must produce evidence to support his or her position (citing In re Estate of Perkins, 210 Kan. at 626).

The burden of proof on the issue of testamentary capacity does not change in those instances where a testator is involuntarily appointed a conservator or guardian.

In re: Estate of Carothers, 220 Kan. 437, 522 P.2d 1254 (Kan. 1976)

The meaning of insane delusion, in its legal sense, is a belief in things impossible, or a belief in things possible but so improbable under the surrounding circumstances that no man of sound mind would give them credence. It is a belief which has no basis in fact or reason (citing Johnson v. Johnson, 105 Md. 81, 85, 65 A. 918, 121 Am. St. Rep. 570.).

An insane delusion, unless it appears that his belief was wholly without any basis whatever, and that the testator obstinately persisted in it against all argument which may have been employed to dissuade him. If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an insane delusion. (citing Stull v. Stull, 1 Neb. (Unof.) 389, 396, 96 N.W. 196.).

A delusion, in order to be a basis for avoiding a will, must be an insane delusion, and the will must be a product of that delusion (citing In re Estate of Millar, 167 Kan. 455, 207 P.2d 483).

The fact that the testatrix was mistaken in her belief is not an insane delusion simply because the basis for the belief would be insufficient for others, if there was some foundation for it in fact (citing Millar).

A mistaken belief by one that he has been wronged by another is a very common frailty of humanity, but such belief is not necessarily an insane delusion (citing Akins v. Akins, 109 Kan. 453, 199 P. 922).