Gregory E. Robinson, P.C.

There are times when a will contest action will be filed challenging the will admitted to probate and seeking to set aside the will. Missouri’s will contest statute, Section 473.083 RSMO, has as its sole purpose to determine whether the will in question is the valid last will of the testator. There are many reasons to file a will contest, which include but are not limited to, lack of capacity, improper execution, fraud, forgery, mistake, duress, insane delusion and undue influence. Many times undue influence will be alleged as the reason for attempting to set aside the will.

Undue influence has been described in Missouri as influence of such force, coercion, or over-persuasion as to destroy the free agency and determination of the testator. MAI 15.03 defines undue influence as the influence to destroy the free choice of the person making the will. These definitions have in common the actions of a third party resulting in an unwilling testator executing a will as directed by the influence exerted by the third party. Undue influence is usually proved through circumstantial evidence. What constitutes undue influence is typically dependent upon the mental stability and independence of the testator. What could be undue influence in one case might not be undue influence in another case.

In Missouri, a presumption of undue influence arises upon a showing of all of the following: a confidential or fiduciary relationship existed between the testator and the beneficiary; the beneficiary received a substantial bequest by the will; and finally, the beneficiary was active in procuring the execution of the will. Attorneys in Missouri will typically include an allegation of undue influence in a will contest action because when all three of these prongs are satisfied a prima facie case of undue influence has arisen and then the case goes to the jury, regardless of any rebuttal testimony. In other words, the attorney who has met the requirements of the presumption of undue influence is assured of having his case heard by the jury. Consequently, the allegation of undue influence is frequently alleged in will contest actions.

In 1980 Missouri added a statute which provided that wills could be self-proved. A self-proved will is a will that is admitted to probate without the necessity of obtaining the testimony of the subscribing witnesses. Section 474.337 RSMO provides that a written will may at the time of its execution, or at any subsequent date, be made self-proved, by the acknowledgment thereof by the testator and the witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer’s certificate, under official seal, attached or annexed to the will.

Missouri law provides that if a will appears to have the required signatures and a certificate as provided in Section 474.337 RSMO, showing that the requirements of execution under Section 474.320 RSMO have been met, then the will shall be probated without further proof. The Statute provides a suggested affidavit in order to make the will a self-proving will. Section 474.337 RSMO. A self-proving will has been held in Missouri to be prima facie evidence of testamentary capacity and due execution.

In order to possess the necessary testamentary capacity in Missouri to execute a will, a person must be of sound and disposing mind and memory. Missouri Approved Jury Instruction (MAI) 15.01 defines the phrase sound and disposing mind and memory. That phrase means that when a person signed the will that he or she was, first, able to understand the ordinary affairs of life, second, able to understand the nature and extent of his or her property, third, able to know the persons who were the natural objects of his or her bounty and, fourth, could intelligently weigh and appreciate the natural obligations to those persons.

The first requirement of MAI 15.01 requires the testator to understand the ordinary affairs of life is an inexact definition and open to many interpretations. It might mean that the person is oriented as to time and space. Some cases have discussed this factor and held that the individual executing the will needed to be able to understand the necessity of providing for the daily needs of life. It has also been interpreted as not being required to understand complicated business transactions. The testator must understand the nature of the transaction of executing a will. This is a basic requirement that the testator know he or she is signing a will. If the testator cannot understand that he or she is executing a will, then the testator lacks the necessary capacity to execute the will.

The second requirement of MAI 15.01 is that the testator must understand the nature and extent of his or her property. The testator needs to understand the nature and extent of his property so that he or she can determine who the beneficiaries of the will are and what each beneficiary should receive. This does not mean that the testator must have a perfect knowledge of the assets and liabilities in his or her estate. A general knowledge of the nature and extent of the property will suffice.

The third requirement of MAI 15.01 is that a testator must understand the natural objects of his bounty. The knowledge may be general in nature but clearly the testator should know the names and number of his or her children. Additionally, it is not uncommon to expect that the testator know the name of his or her spouse, if any.

The last requirement of MAI 15.01 is that a testator must be able to intelligently weigh and appreciate the natural obligations to the objects of his or her bounty and understand the disposition of the property as set forth in the will. This requirement focuses on the disposition of the testator’s assets. The testator must have the required understanding of who the testator desires to name as beneficiaries of his or her estate plan.

As set forth in MAI 15.01, the testator must have satisfied all four requirements at the time of the execution of the will in order to be of sound and disposing mind and memory.

Many people know they need a will, but not everyone knows what a will is or what it does. Having a will attorney can help avoid common pitfalls. A will, which is often called a "last will and testament" is a legal document that leaves your assets to the people you have designated in the document. Many people believe having a will avoids probate, however, in order to be valid, all wills in Missouri must be admitted to the probate court within one year from the date of death. Once the will is admitted to probate, the personal representative, with the assistance of his or her attorney, will begin the process of probating the will.

Naming Beneficiaries
Most people believe that the primary purpose of a will is to provide instructions regarding the distribution of their assets to their beneficiaries. Individuals typically execute wills in order to make sure their assets go to the individuals or charities they have selected. Some wills, known as pour-over wills, function as a safety-net and name your living trust as the beneficiary in case you have neglected to title assets in your trust during your lifetime. Pour-over wills, like all wills go to probate.

There are many other provisions that are typically found in a will. Some common provisions typically found in a will include, but are not limited to:

• Naming the person responsible for carrying out the instructions contained in your will, which is your personal representative;
• Whether your personal representative can be compensated for his or her time;
• Whether your personal representative can serve independently and without probate court supervision;
• Naming guardians for minor children; and
• Instructions on paying debts and taxes.

Wills and Probate Court
It is important to understand that a will must be presented to the probate court within one year from the date of death of the decedent. The probate court judge will either admit the will to probate court or reject the will. The probate court judge will determine the validity of the document.

If you do not have a will and you pass away with assets titled in your name, the probate court will distribute your assets to your heirs as directed by the laws of intestate succession in State of Missouri.

If you have any questions regarding the probate process or wills, feel free to view one of our videos. Please feel free to contact one of our experience attorneys at Gregory E. Robinson, P.C., at 636 532-9500 to assist you with your estate planning needs.