Requirements of Testamentary Capacity

July 21st, 2011 | Author: | Probate law

When someone creates or updates a will, they must be of sound enough mind to understand what they are doing and the implications it has.  This is known in the legal world as testamentary capacity.  The person creating the will is known as the testator, so this term refers to their mental capacity at the time the will was signed to understand what they were doing.  Testamentary capacity can come into play during contested will cases.

The requirements of testamentary capacity are fairly straight-forward.  In most areas, part of testamentary capacity is being a legal adult.  In most areas, the law does not regard minors as able to make the kind of major decisions involved in creating a will or testament.  There are some exceptions to this; in some areas minors who are married may be allowed testamentary capacity.

Other requirements of testamentary capacity are as follows:

  • The testator must be aware of his or her property holdings
  • The testator must understand the value of this property
  • The testator must understand who his or her beneficiaries are
  • The testator must be able to grasp the meaning of decisions made in his or her will
  • He or she must understand how his or her property will be distributed

If someone chooses to challenge testamentary capacity in probate court, the onus of proving mental capacity is on that party.  They must be able to demonstrate that the testator was mentally incapacitated at the time the will was created or updated.  The reasons cited for challenging testamentary capacity are usually dementia, senility, insanity, or the influence of mood or mind-altering medications.

If you are involved in a case of challenged testamentary capacity, contact a probate attorney to improve your chances of a favorable outcome.



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