During probate, an estate will often be challenged on either the grounds that the testator was coerced by undue influence or that he or she lacked the necessary testamentary capacity. With this challenge the probate attorney has little to work with in terms of evidence, as the testator is no longer living.
With this in mind, many lawyers have now adopted the preventative tactic of conducting an undue influence/testamentary capacity assessment at the time the will or trust is established. Thus, when a challenge is raised, the probate attorney has documented evidence that no undue influence was exerted and that the testator maintained an appropriate level of testamentary capacity.
The need for this assessment is particularly essential when the testator is a foreign language speaker. One of the easier arguments against a will or trust is that, because of the testator’s inability to communicate in English, he or she lacked the necessary capacity to knowingly create a will or trust. The same line of argument can be made for undue influence.
For this reason, any assessment done with a foreign language speaker should include evidence of the testator’s ability to comprehend the document being agreed to. More so, proof that a proper foreign language translation was created and that all proceedings had the benefit of a foreign language interpreter should also be included with the assessment.