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What is testamentary capacity? 

Testamentary capacity is the mental state required for a person to make a valid will. Specifically, in order to have testamentary capacity, the testator must: 

  • Be of sound mind: This means that the testator must be mentally sound, able to fully understand that they are creating (or amending) their will, and grasp the significance of their decisions. For example, this element could be challenging to establish if it was shown that the testator had advanced Alzheimer's at the time the will was executed. 
  • Understand the nature of their decisions: This means the testator must be aware of the general value and extent of their property. Furthermore, they should recognize the people who would naturally inherit from them (such as close family members) and comprehend the implications of including or excluding particular beneficiaries.
  • Executed under their own free will: This means that the testator’s decisions must be made without undue influence or threats of coercion. 

Examples of evidence used to show a lack of testamentary capacity could include medical records or a doctor's testimony showing that the testator suffered from dementia, Alzheimer's, or another disorder that severely impaired their cognitive functions. Witness statements or evidence indicating that the testator was unduly influenced or under threat of coercion could also be used for these purposes.

Consequences of a Lack of Testamentary Capacity

Note that a probate court might make a determination that there was a lack of capacity on its own, even if no one contested the will on those grounds. Either way, if the probate court finds that there was a lack of capacity, it may invalidate the will such that the decedent’s estate will be distributed per state intestacy laws or revert to a previous valid version of the will. 

Example: Eleanor, who was diagnosed with advanced Alzheimer’s, would often get confused with paperwork. One day, her niece Nancy visited and brought some documents for Eleanor to review, one of which was a will leaving all her money to Nancy. Because Nancy would often bring her routine paperwork to sign for managing her properties and accounts, Eleanor signed it without reviewing it or giving any thought to what it was. Eleanor's children challenged the will at probate and presented the court with a previous version, leaving everything to them. They also provided evidence of her advanced cognitive impairment through witness testimony and medical documents. The probate court concluded that Eleanor lacked the mental capacity to understand the nature of what she was doing and was also influenced by Nancy's fraudulent behavior. As a result, the probate court ordered that the will was invalid and that the previous version should be reinstated. As a result, the entirety of Eleanor’s estate was distributed to her children.

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