Testamentary Capacity in Drafting a Will

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 What Does “Testamentary Capacity” Mean?

In the context of estate law, “testamentary capacity” is a legal term that is used to describe a person’s legal and mental ability to make a valid will.

The idea is that the person making the will (the “testator”) must have a sound mind and judgment to understand that they are making a will. They must also be able to understand what property they include in their will.

Can a Will be Contested for Lack of Testamentary Capacity?

The party seeking to contest a will has the burden to prove that the testator lacked testamentary capacity at the time he created the will. They must prove that this lack of testamentary capacity existed at the time of the making.

A challenging party is usually a person that gets more of the testator’s property through intestate succession (the process of distributing their property if they don’t have a valid will). So they have a reason to prove that the testator’s will is invalid, as they would benefit more than if a valid will was in place. But, in general, a person contesting the will must have standing. This is required to keep random people from contesting wills and slowing down the probate court system.

The mental capacity required to make a will is much lower than the legal standards for other capacity requirements, such as making a contract. If a person lacks capacity when making a will, then the validity of the will can be disputed. The party contesting the will has the burden to show through clear and convincing evidence that the testator’s mental capacity affected the will.

Who Determines Testamentary Capacity?

When a person dies, their will must be proven in court during probate. During that time, beneficiaries or relatives can challenge or contest the will if they do not receive a fair portion of the estate. Some common reasons to contest the will include:

  • Undue influence (someone coerced the testator to write the will)
  • The decedent lacked the capacity to write the will

The law assumes that a deceased person had the sufficient testamentary capacity to write their will, so anyone who challenges this presumption has to prove to the probate court otherwise. It can be difficult to prove testamentary incapacity during a will contest, especially if the decedent died years after writing their will.

Evidence, such as testimony or paperwork from a medical professional that speaks to the testator’s state of mind and mental incapacity at the time of the will’s execution would likely be needed to prove testamentary incapacity. These documents could go back decades.

A person only needs to have sufficient mental capacity to write a will at the time they wrote it. A will won’t be invalidated just because the testator lost their testamentary capacity as they aged.

Even if you can show that the testator was not of sound mind, you may still have to prove that the mental incapacity caused the deceased person to write their will unfairly or irrationally.

What Are Some Signs and Indications of Mental Incapacity?

When a will is contested for lack of testamentary capacity, the burden is on the challenging party to prove this. They must provide clear and convincing evidence that the testator did not have the proper capacity at the time they made the will.

This can be shown, for instance, by proving the testator was suffering from a mental disorder, which affected his ability to understand the nature of making a will. On the other hand, a will that is unfair and unjust does not necessarily mean that the testator lacked testamentary capacity.

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

  • Suffering from an insane delusion;
  • Experiencing lucid intervals;
  • Evidence of dementia;
  • Symptoms or manifestations of Alzheimer’s disease; and/or
  • Various mental disorders affect the ability to understand actions.

If a person is older or has an illness, it doesn’t necessarily mean they lack testamentary capacity if they can still understand their actions. The main element is the integrity of the mind, not the body’s integrity when determining whether a person lacked testamentary capacity. Also, the challenging party must prove that the mental disorder was present when the testator was making their will.

At the time of their death, the testator’s physician can provide important evidence to either disprove or support the argument that the testator was mentally incapacitated.

How Do Courts Determine Mental Competency?

Courts may evaluate several elements to determine mental capacity. Generally, an individual is considered mentally competent to form a will if, at the time the will is drafted and executed, the person:

  • Understands that the document they are forming/signing is a will;
  • Was able to understand the nature of the requirements needed to draft the will;
  • Understood the nature and situation of the property referred to in the will; and
  • Remembered and understood the individuals mentioned in the will.

Can a Person with a Mental Disorder Draft a Will?

There is no law prohibiting an individual with a legally recognized mental disorder from creating a will. The validity of a will is generally based on the mental competency of the person at the time the will was drafted and finalized.

Therefore, individuals suffering from mental disorders with intermittent disturbances can create valid wills in some cases. For instance, this can happen 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 Based on Mental Incompetence?

Much like mental incapacity, if you believe a person was mentally incompetent when they drafted their will, you can contest the will. This can be done by showing that at the time the will was created, they lacked sufficient mental capacity. The person contesting the will must provide evidence that a mental abnormality actually affected the creation of the will. They must show that the distribution came out differently from what would have occurred otherwise.

If enough evidence is shown to prove the individual’s abnormal mental state altered the will, then they will usually be found invalid. In most situations, invalidating a will for lack of mental competence will void or cancel the entire will.

What Does “Undue Influence” Mean?

A will may also be contested and set aside if it is created under conditions of “undue influence.” Undue influence occurs when a person is subjected to unfavorable conditions in order to create a will a certain way. The conditions may force them to create a will that distributes the property in a way that they wouldn’t actually have wanted if they were not subject to undue influence.

The factors considered in determining if a will was made through undue influence are:

  • Another person influenced the testator in making the will;
  • The effect of this influence was intended to overtake the testator’s intent; and
  • The undue influence resulted in a will that would not be the testator’s intent without the influence.

Do I Need an Attorney if I Need Help with Testamentary Capacity Issues?

Determining an individual’s mental capacity to create a will is done through the courts. Evaluating testamentary capacity issues can be complicated. At a minimum, an initial review of the circumstances by a will lawyer will help determine whether there is sufficient evidence to proceed.

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