Testamentary Capacity

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 What Is a Will?

In short, a will is an estate planning document that allows a person, also known as a “testator,” to create a document that designates how their property will be distributed upon death. The property that may be disposed of in a will may include real or personal property. It is important to note that every jurisdiction will have different rules regarding making a valid and enforceable will.

In general, in order for a will to be valid, the document must meet each of the following requirements:

  • The will must be in writing;
  • The will must be signed by the testator.
    • Additionally, a will should generally also be dated, as doing so helps to reduce any confusion regarding the correct will if multiple wills have been executed.
    • If the testator is not able to sign, such as if they are unable to use their hands, it is generally allowed for the testator to make a mark (such as an X), and then witnesses that were present during the signing can attest that the testator did in fact sign it;
  • The will must be witnessed by at least two or more competent witnesses.
    • Importantly, the witnesses cannot generally be interested in the will, which means that they cannot be named in the will or otherwise have a stake in the will; and
  • The testator must have testamentary capacity.

What Is Testamentary Capacity?

Once again, an individual must have the proper testamentary capacity to execute a valid will. In short, testamentary capacity refers to a person’s mental state when creating their will. Put simply, testamentary capacity is generally met if the testator is above the age of 18, in the military, is legally married, and knows all of the following:

  1. That they are creating a will;
  2. That the effect of the will is to distribute their property upon their death;
  3. They understand the property listed in their will in which they are distributing; and
  4. They understand the distribution scheme present in their will document, i.e., who receives the property upon their death.

What Are the Requirements to Prove Testamentary Capacity?

As mentioned above, the individual creating the will must possess testamentary capacity to execute a will. Once again, testamentary capacity refers to an individual’s mental and cognitive ability to create and execute a will.

Testamentary capacity does not refer to a person’s skill in creating a will document but rather whether they understand what they are creating and what it does. If the testator lacked testamentary capacity when they created the will, any will document they created may not be legally enforceable upon their death.

The following is a list of requirements that must be generally met if the testator wishes to demonstrate they have proper testamentary capacity:

  • Majority Age: Once again, to create a valid and enforceable will, the person creating the will must be over 18, in the military, or married at the time of the creation of the will.
    • It is important to note that states may choose to change the age of majority to create a valid and enforceable will in that state;
  • Understanding: The testator must also be aware that they are creating a will and must also understand that the effect of the will is to distribute their property when they die.
    • The testator must also understand which property they are distributing and who will receive it.
    • It is important to note that the property the testator is attempting to distribute must be in their possession, meaning the testator may not distribute property that belongs to anyone else or is not in their possession; and
  • Beneficiaries: Lastly, the person creating the will must identify and name the recipients of the property that will be distributed upon their death.
    • This means that the testator must properly name the parties to receive property upon their death, i.e., they must properly list all beneficiaries in the will.

Once again, the exact rules for proving testamentary capacity may differ by state. As such, it is important to consult the estate code in the state where the testator resides when creating a will to determine whether or not they possess testamentary capacity. Additionally, the requirements for testamentary capacity may vary based on what specific type of will is being created.

For example, if the will being created is holographic, then the testator will typically not be required to have witnesses at the signing of the will, so long as their will was both written and signed by the testator.

What Happens if the Testator Does Not Possess Testamentary Capacity?

It is important to note an individual is assumed to possess testamentary capacity to create a will until proven otherwise. As such, the burden of proving that a person did not possess testamentary capacity at the time of the execution of a will belongs to the person challenging the validity of the will. This means that it is the challenger of the will’s responsibility to prove that the creator of the will lacked the property mental capacity at the time of the will’s creation.

If a will was formed without proper testamentary capacity, then that will may be declared void. For example, if a person leaves half of their property to one child, another half to another child, and another half to their siblings, that may be challenged. This is because having three total halves of their estate property is impossible. Improper distribution schemes could indicate that the person did not have the proper understanding to meet the testamentary capacity qualifications when the will was created.

In general, the person challenging a person’s testamentary capacity will typically do so to get the will voided by the Court. Typically, a person will contest a will when they feel cheated out of their rightful inheritance. Because of this, that person will believe that the distribution is unfair or not following the decedent’s actual wishes and intentions and seek to get the will voided by challenging the will’s validity.

In some cases, instead of a will being completely voided, the court may choose to rewrite the will to attempt to give effect to the testator’s original intentions. For example, if the testator leaves three halves of their property to three named parties, the court may allow the will to be rewritten to divide the property into thirds.

It is also important to note that having a mental health condition or illness is not an automatic disqualifier when creating a will. This means that as long as an individual’s mental capacity satisfies the conditions for testamentary capacity, any will that person creates will still be considered legally enforceable.

It is also important to note that an individual will not be deemed to possess testamentary capacity if they were forced or coerced to write a will. If a person is forced or coerced to create a will, that would be considered undue influence and render the will created under duress invalid.

Do I Need An Attorney for Help With Testamentary Capacity?

If you are considering drafting a will, or believe you may not possess testamentary capacity, consulting with an experienced local last will and testament lawyer is in your best interests.

An experienced attorney will best help you understand your legal rights and options according to your state’s specific laws regarding testamentary capacity. Finally, an attorney can also represent you in court, as needed, should any issues arise concerning your testamentary capacity.


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