Man Under Conservatorship May Still Make New Will


James Mask suffered a stroke in 1985, and thereafter had difficulty handling his own personal and financial affairs. With two months of his stroke, Mr. Mask’s daughter Vera Elrod had asked the Mississippi court where Mr. Mask lived to appoint her as his conservator. Mr. Mask initially objected, but finally agreed that a conservator could be appointed. His daughter and his son, Johnny Mask, were appointed as co-conservators.

Two years later, Mr. Mask initiated proceedings to terminate the conservatorship. The court denied his request, and continued the appointment of his two children as his conservators.

A year after that denial, apparently piqued at his daughter for initiating the proceedings, Mr. Mask wrote a new will. In the will, he left his entire estate to his son Johnny, his two grandsons and two of his granddaughters (leaving out not only his daughter but also the granddaughters who had originally joined her in seeking the conservatorship).

When Mr. Mask died, his daughter and the granddaughters who were not included contested the validity of his will. They argued that he was incapacitated at the time it was executed (almost three years after the conservatorship was initiated), and that the conservatorship was good evidence of that alleged fact.

The Mississippi Supreme Court ultimately decided the validity of Mr. Mask’s will. Noting that “the mere fact that Mask was under a conservatorship at least partly on grounds of mental weakness … should not be given undue importance,” the Court decided Mr. Mask was competent to make a will when he did. The Court found that there was plenty of evidence supporting Mr. Mask’s capacity to make a will. The Court noted that the conservatorship was initiated at least partly because of Mr. Mask’s “mental weakness” (the language used in Mississippi’s conservatorship statutes). “Mississippi law,” said the Court, “does not consider such fact to bar the person under a conservatorship from executing a valid will as long as said person possesses testamentary capacity at the time he executes the will.” Estate of Mask v. Elrod, August 1, 1996.

Arizona law would dictate the same result. An early Arizona case involved the estate of Marvin Teel, a developmentally disabled adult who wrote a will in 1945 leaving his estate to a cousin. On his death in 1969, other family members challenged the will, noting that a guardian was appointed for Mr. Teel within a year of his executing his will.

The Court ruled that even someone who “functioned at the age level of a ten to twelve year old” might have sufficient capacity to make a will. In Mr. Teel’s case, “He could drive a car. He could do simple manual tasks. He could assume responsibility for running errands for his family and friends, care of flower gardens and assume the responsibility for driving ladies to and from church meetings and high school students to and from school on a regular basis for sustained periods of time.” Mr. Teel could also make a will. Teel v. Roberson, Ariz. Ct. of Appeals, 1971.

It is also clear that a person under guardianship can revoke a previous will. In 1963 Union P. Thomas wrote a will leaving his entire estate to Grand Canyon College. Six months later his cousin was appointed as his guardian, and about a year after that he revoked the will favoring Grand Canyon College. After his death in 1965, the College and his heirs went to court to determine whether he was competent to revoke his will.

Thomas’ guardianship did not even create a presumption of incompetence, and the evidence was clear that he knew what he was doing with his will. His estate went to his family. Grand Canyon College v. Goms, Ariz. Supreme Court, 1969.

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