Testamentary Capacity in Drafting a Will

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What Is Testamentary Capacity

Testamentary capacity is a legal term that is used to describe a person's legal and mental capacity to make a valid will. The concept is that the person making the will must have the right sound mind and judgment to understand that he or she is making a will and understands what property he is including in his will.

How Is a Will Contested for Lack of Testamentary Capacity?

The party seeking to set aside a will has the burden to prove by clear and convincing evidence that the testator lacked testamentary capacity at the time he created the will. They must prove that the mental incapacity existed at the time of the making. The challenging party that seeks to have the will set aside is usually the person that gets more of the testator's property through intestate succession, and having the testaor's will set aside would benefit them more than having a will.

The mental capacity required to make a will is much lower than the legal standard of other acts requiring capacity such as making a contract. When a person lacks capacity when making a will, the validity of the will can be disputed and the partying contesting the will has the burden to show clear and convincing evidence that the testator's mental capacity effected the disposition of the will

What Are Some Signs of Mental Incapacity?

When a will is contested for lack of capacity by the testator when making the will, the burden is on the challenging party to provide clear and convincing evidence that the testator was suffering from a mental disorder or capacity which effected his ability to understand the nature of making a will and understand the extent of the property being disposed in the will. A will that is unfair and unjust does not mean that the testator lacked testamentary capacity.

Some examples where a testator may have lacked testamentary capacity are:

Being extremely old or grave illness does not deprive a person of testamentary capacity since they can still understand their actions. The main element is the integrity of the mind, not the integrity of the body to determine whether a person lacked testamentary capacity. Also, the challenging party must prove that the mental disorder was present when the testator was making a will.

How Is Mental Competence Determined?

Generally, an individual is considered mentally competent if, at the time the will is drafted and executed, the person:

Can an Individual with a Mental Disorder Draft a Will?

There is no law prohibiting an individual with a mental disorder from creating a will. The validity of a will is based on the mental competency of the person at the time the will was drafted and executed. Individuals suffering from mental disorders with intermittent disturbances can create valid wills if he or she is not suffering from any disturbances at the actual time the will was drafted and executed.

How Can I Contest a Will for Mental Incompetence?

If you believe a person was mentally incompetent when they drafted their will, you can contest the will by showing that at the time the will was created, they lacked sufficient mental capacity.  The person contesting the will must show evidence that a mental abnormality actually affected the creation of the will, making the distribution different from what would have occurred otherwise. If sufficient evidence is shown to prove the individual's abnormal mental state altered the will, then the will be found invalid. In most situations, invalidating a will for lack of mental competence will void the entire will.

What Is Undue Influence?

A will may also be contested and set aside if it was the result of undue influence. Undue influence is similar to lack of capacity since both theories influence the testator's intent of making a will may have an effect on how the testator actually wanted to distribute his property.

The factors considered in making a determination that the will was a result of undue influence are:

Do I Need an Attorney to Contest a Will for Mental Incompetence?

Determination of an individual's mental capacity to create a will is done by a trial judge. Evaluating whether there is sufficient evidence to successfully contest mental capacity is complicated and at minimum, an initial review of the circumstances by an experienced estate planning attorney will help determine whether there is sufficient evidence to proceed.

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Last Modified: 02-06-2015 03:47 PM PST

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