When deciding whether a testator has sufficient testamentary capacity, a paralegal should consider both objective and subjective signs. Objective signs include the testator's ability to communicate clearly, their awareness of their surroundings, and their understanding of the will's contents. Subjective signs involve the testator's demeanor, coherence, and consistency in their statements. Evidence of confusion, disorientation, or inability to recognize close family members may indicate a lack of capacity In re Estate of Schoch, 209 Neb. 812, In re Estate of Morris, 2000 Neb. App. LEXIS 142, Kuncl v. Fugate (In re Estate of Lowe), 2021 Neb. App. LEXIS 67.

If directed by a supervising attorney to witness a will for a testator who appears to lack testamentary capacity, I would express my concerns to the attorney. You should always document your observations and, if necessary, refuse to sign the will. The attorney has the responsibility to ensure the testator's capacity and may need to take protective actions, such as consulting with medical professionals or seeking the appointment of a guardian Neb. Ct. R. of Prof. Cond. 3-501.14, Client with diminished capacity.

In Nebraska, an attorney can draft a will for a client who is of unsound mind, but the will's validity depends on the testator's capacity at the time of execution. The burden of proving testamentary capacity lies with the proponent of the will, and if a prima facie case is made, the contestant must provide sufficient evidence to rebut it In re Estate of Schoch, 209 Neb. 812, In re Estate of Morris, 2000 Neb. App. LEXIS 142, In re Estate of Camin, 212 Neb. 490, 30-2431. Formal testacy proceedings; burdens in contested cases.

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