Also known as: testamentary intention · intent to make a will
Written by attorneys · grounded in primary & secondary sources — see below
The mental state that a document is intended to operate as a will upon the testator's death. A clear expression of that intention in the document itself creates a strong but rebuttable presumption that the required state of mind existed. Extrinsic evidence may rebut the presumption when the document was executed for a non-testamentary purpose.
Talia Torres signed a document labeled her last will that left her estate to her nephew. After her death her sister petitioned to establish intestacy and offered testimony that Talia had executed the paper only to persuade a creditor she was insolvent. The court placed the burden on the sister to prove lack of testamentary intent by clear and convincing evidence.
Tonya Takahashi executed a formal document reciting that it was her last will and left her house to her boyfriend. Evidence showed she signed it solely to induce him to move in with her and never intended it to govern her estate. The court held the instrument ineffective because the presumption of testamentary intent had been rebutted.
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Tessa Takahashi instructed her lawyer to leave her cabin to her daughter but the typed will instead named her son. After her death the daughter offered extrinsic evidence of the drafting mistake. The court considered whether the error prevented Tessa from possessing the required intention that the executed document control disposition of the cabin.
Tara Tran wrote a signed and dated letter directing that her Montana cabin go to her companion upon her death. The letter was discovered after she died and her estate argued it lacked the necessary state of mind because she had an earlier formal will. The court examined surrounding circumstances to decide whether the letter manifested the intention that it operate as a testamentary disposition.
Tabitha Taylor's will created a public park open only to one race. After her death the heirs challenged the restriction on constitutional grounds. The court considered whether the testator's intention that the document control the property at death remained effective once state enforcement of the racial limitation became impossible.
Tiana Tan consulted her lawyer about drafting a will and later died before any document was signed. The government sought the lawyer's notes to determine whether she had formed the intention that any writing would govern her estate. The court weighed whether those communications could be used to establish or negate the required state of mind.
The contestant must establish by clear and convincing evidence that the decedent did not intend the document to operate as a will at death. A recital that the paper is a last will creates only a rebuttable presumption. Extrinsic evidence of a collateral purpose such as inducing a third party to act may overcome the presumption.
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No. The label raises a strong presumption but the presumption remains rebuttable by clear and convincing evidence that the decedent executed the paper for a non-testamentary purpose. Courts admit extrinsic evidence to determine whether the required state of mind actually existed.
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The proponent of the will bears the initial burden of showing due execution. Once that showing is made the burden shifts to the contestant to prove lack of testamentary intent by clear and convincing evidence.
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Yes. Courts may consider statements the decedent made to third parties and the circumstances surrounding execution even when the document itself is entirely in the testator's handwriting. Such evidence helps determine whether the writer intended the paper to function as a will.
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…he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White…