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Contesting a Trust and Testamentary Capacity – Universal Issues

While Mississippi may be quite a few miles from Denver, Colorado, recent headlines prove that regardless of one’s geographical location, social stature, wealth or position, estate issues can- and likely will- rear their ugly head, even in the best of familial structure, when one least expects it.

NFL fans far and wide are undoubtedly aware of the passing of Pat Bowlen, former owner of the Denver Broncos franchise, who died in last summer, two months prior to his induction into the Pro Football Hall of Fame.  Bowlen, who died at the age of 75 after a long battle with Alzheimer’s, left behind a large estate, controlled by a trust- which is charged with the selection of the new controlling owner of the Broncos franchise, worth more than $2.5 billion.

Unfortunately, even the best of intentions can bring about the worst of circumstance. Since Bowlen’s death, a lawsuit has been filed by two of his children, contesting the trust and raising the issue of testamentary capacity, or the lack thereof, with regard to Bowlen’s ability to establish and understand his trust and estate plan. The children are challenging the trust and seeking a controlling interest of the Broncos franchise for themselves.  According to reports, such as the one linked here (, Bowlen, who originally established the trust twenty years ago, updated his estate plan in 2009.  Since he stepped down from the team in 2014, the trust, by and through its trustees, has been in charge of the team’s operations.  Incidentally, a separate lawsuit, filed by Bowlen’s brother, sought to remove the trustees; it also addresses issues similar to the suit filed more recently by Bowlen’s daughters.  That case, which remains ongoing, brought the NFL as a separate party into the litigation as arbitrators.

For a will or trust to be valid in Mississippi, the testator or settlor (the person making the will or trust) must possess testamentary capacity at the time the will or trust is made.  To possess testamentary capacity, an individual must be of sound and disposing mind. In Mississippi, testamentary capacity is determined based on three (3) factors: (1) whether the testator or settlor had the ability at the time of the will or trust to understand and appreciate the effects of his act; (2) whether the testator or settlor had the ability at the time of the will or trust to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator or settlor was capable of determining at the time of the will or trust what disposition he desired to make of his property. Also, recognizing that a testator or settlor may not always possess testamentary capacity, the Mississippi Supreme Court had held that the testator or settlor may nevertheless execute a valid will or trust during a lucid interval.

The case filed by Bowlen’s daughters remains ongoing, with trial expected to commence this fall; undoubtedly, it will drag on well into 2021 given the nature of the case and the numerous parties involved.  Aside from the egregious financial toll undertaken by the parties to litigate such a matter, it stands as fact that one cannot possibly place a dollar amount on the stress and undue hardship the relationship amongst the family members involved will certainly suffer.  Suffice to say, these events prove the absolute necessity of entrusting your estate planning to experienced and knowledgeable legal experts who focus their practice in this area of the law each day.  At Glover Russell, our practice is primarily focused on estate planning and administration, which includes the finite aspects of trust law, administration, and litigation, when absolutely necessary.

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