What is testamentary capacity?

On Behalf of | Feb 28, 2024 | Estate And Trust Litigation

To ensure that a will is valid, it must meet certain parameters. For instance, there must be a signature from the testator and two witnesses who do not stand to gain from the estate. Furthermore, any older drafts of a will should be destroyed or revoked. Another requirement is that the testator must have had testamentary capacity at the time a will was drafted.

Testamentary capacity is, simply put, a testator’s ability to make a will. Without it, a will might be invalid and challenged. This can create a lot of issues during the probate process, but assets may also be correctly distributed if it’s suspected that a testator was taken advantage of. Here’s how to know if a testator had testamentary capacity:

Does a testator have any mental illnesses?

A testamentary capacity is often related to a testator’s mental health. If a testator’s mental ability declines, then they may no longer have testamentary capacity. The capacity to make a will isn’t often related to forgetfulness due to old age, but more complex illnesses and injuries, such as:

  • Dementia
  • Alzheimer’s disease
  • Delusions
  • Psychosis
  • Drug and alcohol abuse
  • Brain injury

A will can often still be made in spite of these illnesses or injuries. But, this may need to be done during a time when the testator is not suffering cognitive impairment.

Did a testator understand the nature of their will?

The reason a testator should have testamentary capacity is because they need to know the nature of their will. Not only should they know what they are drafting but also the contents they are signing. A testator should know the extent of their estate and who might benefit from it. A testator who doesn’t have testamentary capacity may sign something that is not in their interests.

If you believe that a testator’s testamentary capacity was lacking, then you may need to learn about your legal options to challenge a will.