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What is testamentary capacity and why does it matter?

Testamentary capacity refers to an individual’s mental and legal ability to create or alter their will. The testator, the person making the will, must possess the necessary capacity to understand the nature and consequences of their actions. Testamentary capacity is a requirement for the validity of a will and serves to protect the testator and their intentions.


Determining testamentary capacity involves assessing the testator’s mental capacity only at the time that he or she is making or modifying it. The level of capacity required is generally considered to be a relatively low hurdle because the law recognizes that individuals may have varying degrees of mental capacity, and it is not necessary for a person to have perfect mental health or cognitive abilities to make a valid will. There is a four-part test to determine if the testator has testamentary capacity.


First, the testator must have an understanding of the property he or she owns. This would include tangible assets like real property, jewelry, vehicles, as well as intangible assets such as bank accounts, investments, and stocks. The testator should be aware of the general value or worth of these assets. Moreover, the testator should understand the significance of including their property in a will and should recognize that their will serves as a means to distribute his or her assets to their chosen beneficiaries after their death.


Second, the testator should know the natural objects of his or her bounty. This focuses on the testator’s understanding of the disposition of their property amongst his or her beneficiaries. The testator should have an understanding of the different options available for distributing property, such as percentages, or creating trusts. They should also be able to anticipate how their choices in the will may affect their beneficiaries.


Third, the testator must understand the disposition that their will is making. Here, the testator must have the mental capacity to understand the effects that undue influence or fraud can have on his or her will. The testator must be able to exercise independent judgment and that the will provisions reflect their true intentions. Overall, the testator should have the capacity to resist undue influence or fraud and be able to make decisions free from coercion, duress, and manipulation by others.


Lastly, the testator must understand the legal consequences of executing their will. This means that the testator must understand that the persons identified in the will, and no one else, will receive the testator’s assets in the manner specified in the will. As an example, the testator needs to understand that if they were to disinherit a family member under a will, that such member may have inherited property by default if no will was executed.


If the above factors are satisfied, a court is likely to find testamentary capacity. To assess testamentary capacity, the lawyer may do so through careful questioning and observation, seeking to establish their understanding of the nature and extent of their property, the nature of their relationships, and whether they are susceptible to undue influence. In some cases, medical professionals may be consulted to provide evaluations of the testator’s mental state and capacity contemporaneously with when he or she executed the will.. Notably, while the threshold for testamentary capacity is relatively low, it does not mean that anyone with diminished mental capacity can automatically create a valid will. Basic understanding of the nature and consequences of the will is still required and the testator may not be suffering from an insane delusion, such as “I’m passing all my property to my pet cat who speaks with me daily”.


While testamentary capacity is generally considered a low hurdle to satisfy, disputes can still arise regarding a person’s capacity at the time of making his or her will. For example, if one challenges the validity of a will based on lack of testamentary capacity, the court may need to intervene and evaluate the evidence presented. This may involve an examination of medical records, witness testimonies, expert opinions, and any other relevant information to determine whether the testator met the required testamentary capacity at the time he or she executed the will.


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