question.jpgIn Trusts and Estates

What is testamentary capacity?

One of the four general requirements for a will to be legally valid is that the person preparing the will must have testamentary capacity. This basically means that the person must understand that the document they are creating is a will. They must only have this testamentary capacity at the time the will is actually created, so if someone is heavily medicated or mentally disabled, but created their will in a period of lucidity, they may be found to have had testamentary capacity even though they may have lacked such capacity on a general day-to-day basis.

The specific requirements regarding what constitutes testamentary capacity are somewhat vague, as they are interpreted independently by the courts of each state. Generally, however, there are four basic requirements:

1. The person must understand that they are making a document detailing what should happen to their property when they die.

2. They must have an understanding of what property they own and are including in the will. While this does not require that they be capable of specifically listing each and every item of property they own, they must have an overall general understanding of what they own.

3. They must be able to understand that their heirs would generally be their spouse, their children, etc. (that is, the people entitled to take property pursuant to state intestacy statutes). While they do not necessarily have to leave these potential heirs any property in the will, they must understand that these people would have been potential heirs but for the fact that they are being excluded from the will.

4. They must be able to keep all of this information and understanding in their mind long enough to make a reasoned decision regarding how they want their property to be distributed.

The other three general requirements for a will to be legally valid are that the person preparing the will must have legal capacity and testamentary intent, and the will must be prepared pursuant to specific formalities.