Intestate Succession and Wills

ORS 112.225
Who may make a will


Any person who is 18 years of age or older or who has been lawfully married or who has been emancipated in accordance with ORS 419B.550 (Definitions for ORS 419B.550 to 419B.558) to 419B.558 (Entry of judgment of emancipation), and who is of sound mind, may make a will. [1969 c.591 §36; 2015 c.387 §10]

Notes of Decisions

Testamentary Capacity

A testator is presumed to have testamentary capacity if the will is executed in due form. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

Competency at the time of making the will is determinative of testamentary capacity. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

Proponent of a will has the burden of proving testamentary capacity. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

Testimony of a subscribing witness which bears on mental competency is entitled to great weight. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

A presumption that the decedent was mentally incompetent does not arise from the appointment of a guardian for him, the presumption only arises where the guardianship is set up because of the ward's mental incompetence. Whitteberry v. Whitteberry, 9 Or App 154, 496 P2d 240 (1972)

Under conflicting testimony by attesting witnesses, whether testatrix was mentally competent to execute will was question for trier of fact. Currie v. Price, 31 Or App 141, 570 P2d 81 (1977)

Evidence, inter alia, that decedent was in hospital in extreme pain, could barely read and hear, and had been treated with strong narcotic, established that she lacked testamentary capacity at time codicil was executed. Hunt v. Galton, 37 Or App 811, 588 P2d 125 (1978), Sup Ct review denied

Fraud and Undue Influence

The law will not permit improper influences to control the disposition of a person's property. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

The burden of showing the exercise of undue influence at the time of making the will is upon the contestant. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

A disputable presumption of undue influence arises if a beneficiary who sustains to the testator a confidential relationship participates in drafting the will. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

Reasonable solicitations, without more, do not constitute undue influence. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied

Influence arising from gratitude, affection or esteem is not undue. Nease v. Wilson, 6 Or App 589, 488 P2d 1396 (1971), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021