There are several requirements to fulfill in order for a will be valid. Among these requirements, one of the most important is that the person creating the will (the testator) must possess "testamentary capacity." Testamentary capacity is basically the mental and cognitive ability to create the will document.

Testamentary capacity does not refer to a person’s skill at crafting such a document. Rather, testamentary capacity focuses on whether or not the person understands that they are creating an enforceable will under law. If a person lacks testamentary capacity, any will that they create may not be enforceable.

What Are the Requirements of Testamentary Capacity?

The requirements for proving testamentary capacity may vary according to regional laws. However, most states will consider the following factors in order to prove that a person has the testamentary capacity to create a valid will:

  • Majority Age: A person must be of majority age in order to create a valid will. In most states this is usually 18 years of age or older. Minors are generally not allowed to create wills.
  • Understanding: The person must understand that they are creating a will and must demonstrate that they intended to do so. That is, accidental or unintentional statements are not considered valid wills. The person must be able to clearly state their intentions in the will.
  • Property: The person creating the will must also possess property to be distributed upon their death. A person may not distribute property that belongs to another. Also, the property must be identifiable in the will (i.e., avoid ambiguous descriptions of property).
  • Recipients: The person must be able to identify the recipients of the property distributions. Listing fictional characters may make a will invalid.

How Is Testamentary Capacity Proven?

A person is presumed to have testamentary capacity to make a will until proven otherwise. The burden of proof is on the opponent(s) of the will to prove that the person who made the will lacks capacity. A common example of a will that was formed without testamentary capacity is where the person leaves half of their property to a child, half to a sibling, and another half to their parents. Since three halves are not possible, this may indicate that the person does not possess the proper understanding to satisfy testamentary capacity.

However, the testator has a few methods of proving that he or she had capacity even after the testator has passed away. Video wills are often used for this purpose. Likewise, witnesses, especially the witnesses who executed an attested will, can testify that the testator understood and knew what he or she was doing.

Can a Person with a Mental Condition Create a Will?

In general, having a mental condition will not automatically disqualify someone from creating a valid will. So long as their mental competency satisfies the requirements for testamentary capacity, any will that they create will be considered enforceable under law. The question is whether the will is a product of the mental condition.

In particular, many mental illnesses occur periodically, with the person demonstrating symptoms only at certain times. In many states, a person with a cyclically repeating condition may create a will when the symptoms are not manifesting.

What If the Person Was Forced to Make the Will?

The testator cannot be forced to write a will or coerced into doing something he or she would not do had there been no coercion. That would be undue influence and would make the will invalid.

Undue influence can exist in fiduciary relationships, such as nurses and patients. Although the mere existence of a fiduciary relationship is not proof of undue influence, other circumstantial evidence may be relevant. For example, if the testator was dependent on the other person for food, housing, or contact with the outside world, there will be a greater chance of undue influence.

Do I Need a Lawyer for Questions about Testamentary Capacity?

Testamentary capacity is a very important aspect of drafting a will. If you have any questions or disputes over testamentary capacity, you may wish to speak with an estate lawyer immediately. An experienced attorney can help you draft the will and can determine whether you will be able to satisfy the requirements for testamentary capacity. Also, in the event of a will contest, a lawyer can help you argue your claim in court.