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Wednesday, November 10, 2010

The test for testamentary capacity

It's pretty common knowledge that mental capacity is required for a person to sign a Will. That seems such a simple statement, but the implications of it are far-reaching. For example, one of the common ways that a person disappointed in what they did or didn't get under a Will can contest the Will is to use the issue of capacity. In other words, they claim that the testator only cut them out of the Will because they "didn't know what they were doing".

Determining whether capacity exists in any particular person at any particular time is tricky. Wills lawyers are trained to assess mental capacity for the purpose of signing Wills (also known as "testamentary capacity"). The basic requirements are that the testator must:

1.  understand the nature and effect of a Will. This means that he must understand that he is giving away his property after his death.

2.  remember what assets he owns. This doesn't necessarily mean knowing to the nickel what is in each bank account, but he should have a good knowledge of whether he owns a house, who else's name is on the title, whether he has life insurance, who the beneficiary is of the policy, etc.

3.  understand what he is giving away in his Will, and to whom.

4.  know who he has in his life that might be expected to inherit something under his Will, such as a spouse, children, or a handicapped child.

5.  if anyone is being excluded, understand whether that person could make a claim against the estate.

One of the main things we can take from this test is that just having the ability to state Will instructions is not enough; the testator has to understand what he is saying and want to do what he is saying. This is why Wills lawyers are on the alert for things like bossy children bullying parents into changing Wills that they don't really want to change.

Another thing we can take from this test is that the testator is free to leave people out of the Will, as long as he understands that doing so might cause that person to make a claim. His choices don't have to be popular with anyone, as long as he understands the probable consequences of those choices. In other words, if your parents leave you less under their Wills than they leave to your siblings, it doesn't mean that they had lost their marbles. It probably means that it was a conscious choice for reasons of their own. You don't have to like it for it to be legally valid.

When testamentary capacity comes into question, it often leads to a court battle over the Will. It's not that easy to prove or disprove the mental capacity of someone at some earlier time, particularly when that person has now passed away. The best evidence available to prove that a testator had capacity when the Will was made are a file full of notes from the lawyer who made the Will, and a letter or report from a doctor who examined the testator's capacity close to the time the Will was signed.

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