Part of estate planning is creating a will, or a document that allows a person to designate how their property will be distributed once they die. This property includes both real and personal property. A will may also clarify other decisions, such as:

  • Organ donor status;
  • Guardianship designation for any minor children;
  • End of life care; and
  • Funeral arrangements such as if the decedent wished to be cremated, if they pre-paid for a funeral while living, etc.

In order for a will to be valid and legally enforceable, the will must meet each of the following criteria:

  1. The will must be in writing;
  2. The will must be signed by the testator, or the estate owner; although not technically a requirement, a will should also be dated in order to provide clarity if there are multiple wills;
  3. Be witnessed by no less than two or competent witnesses; and, the witnesses may not usually be interested parties, as in they are not named in the will or have some other stake in the will; and
  4. The estate owner must have what is referred to as testamentary capacity.

To put it simply, testamentary capacity refers to a person’s mental state when creating their will. There are certain requirements that must be met, which will be further discussed in the following section.

What are the Requirements of Testamentary Capacity?

Testamentary capacity essentially refers to the mental and cognitive ability to create and sign the will document. It does not refer to a person’s skill in regards to creating the will document, but rather whether or not they understand that what they are creating is a legally enforceable will. Do they know what the document they are signing is about? Do they understand what it means?

If the estate owner and will creator lacks testamentary capacity, any will document that they create may not be legally enforceable. Testamentary capacity is generally met if the estate owner and will creator meets some of the following requirements:

  • Majority Age: This means that they are over the age of eighteen, as minors are not generally allowed to create legally enforceable wills. The age of majority may vary by state;
  • Understanding: They are aware that they are creating a will with the effect being the distribution of their property when they die, and they understand which property they are distributing and who is to receive the property.
    • Accidental or unintentional statements are not considered to be valid wills, and the person must clearly state their intentions in the will. The property they are attempting to distribute must be in their possession. This means that they may not distribute property that belongs to anyone else, and the property must be identifiable in the will;
  • Recipients: The person must identify and name the recipients of the property being distributed. Listing fictional characters as recipients could render the will invalid; and/or
  • Other Considerations: They are in the military, or they are married.

It is important to note that the above mentioned requirements may vary depending on the state in which the estate owner lives. Additionally, the requirements may vary based on what specific type of will is being created. An example of this would be if the will is holographic. Holographic wills generally do not need to be witnessed, as long as the will has been both written and signed by the author.

How is Testamentary Capacity Proven?

It is assumed that a person has testamentary capacity to create a will until proven otherwise. The burden of proof belongs to the opponent of the will. It is their responsibility to prove that the will’s creator somehow lacks the property mental capacity that legitimizes their will.

An example of a will that was formed without testamentary capacity is when the person leaves half of their property to a child, and half to a sibling, while leaving yet another half to their parents. As it is not possible to have three halves, this could indicate that the person does not possess the proper understanding to meet the testamentary capacity qualifications.

However, it is possible for the will’s creator to prove their testamentary capacity even after they have died. Video wills are used for this purpose, as are witnesses, especially the witness who executed an attested will. These measures can testify that the will’s creator knew and understood what they were doing.

It is imperative to note that, in general, having a mental condition or illness does not automatically disqualify a person from creating their will. As long as their mental capacity satisfies the conditions for testamentary capacity, any will that they create will be considered legally enforceable.

The only question will then be if the will is a product of the mental condition as opposed to being a product of the creator’s own recognizance. Specifically, many mental illnesses occur periodically and the person only demonstrates symptoms at certain times. In many states, a person with such an illness may create their will only when they are considered asymptomatic.

Additionally, the will’s creator cannot have been forced to write the will, nor may they be coerced into doing something they would not otherwise do. That would be considered undue influence, and would render the will invalid.

Undue influence may exist in fiduciary relationships, although the mere existence of a fiduciary relationship is not proof of undue influence. Other circumstantial evidence may also be relevant. An example of this would be if the will’s creator was dependent on the other person for food, shelter, or contact with the outside world, there would likely be a greater chance of undue influence.

Do I Need an Attorney for Help With Testamentary Capacity?

A skilled and knowledgeable estate attorney will help you draft a will and ensure that all requirements are met, including testamentary capacity. Additionally, should the will be contested at any time, an attorney can argue your claim in court as needed.