Court of Chancery Finds Testatrix Competent to Make Will

Delaware Fiduciary Litigation Blog

Posted March 8, 2013

Davis v. Estate of Mary S. Perry, C.A. No. 2419-VCG (January 2, 2013).

Petitioner argued that the testatrix lacked capacity to make a will. He offered two facts to support his argument. The first fact was that he had spoken by phone to the testatrix at about the time she made the will and that she seemed confused to him. But the Court found that “[t]he fact that a testatrix suffers from confusion does not prevent her from creating a valid will if on the day the will is executed she is not confused and possesses an understanding of her property and the natural objects of her bounty.” The other fact that Petitioner argued showed lack of capacity was that the will didn’t have a residuary clause.  But the Court found that more likely to be a scrivener’s error than indicative of the testatrix’s confusion. Further, the now-disbarred attorney that drafted the will testified that the testatrix was competent and so did a few other admittedly self-interested witnesses.  While the Court gave none of that testimony great weight, it found on balance that the testatrix was competent to make the will.


Phillip Giordano, GF&M Law
Gordon, Fournaris & Mammarella, P.A.
William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.