Mental Competency in Drafting a Will

Mental Competence Requirement for Drafting a Will

A person must be of sound mind to draft and execute a valid 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:

• Had the mental capacity to understand the nature of the actions taken to draft the will
• Understood the nature and situation of the property included in the will
• Remembered and understood the individuals affected by the will

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.

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 attorney will help determine whether there is sufficient evidence to proceed.