Imagine that a loved one has recently died and you just received a copy of the decedent’s Last Will and Testament. Further imagine that the terms found in the Will seem very strange and out of sync with what you would have expected from your loved one. In fact, you start to wonder if your loved one was himself or herself when the document was signed. Do you have legitimate grounds to challenge the Will on the basis that your loved one lacked testamentary capacity? Maybe.
While state laws determine the precise definition of the term “testamentary capacity”, it generally refers to a testator’s mental capacity to execute a Will. An adult is presumed to have the requisite testamentary capacity to sign a Will, meaning that you will have to provide evidence to the contrary if you bring allegations that your loved one lacked testamentary capacity.
Furthermore, the requirements for testamentary capacity are typically less than what most people expect. Usually, the testator must only understand: 1) what a Will is and what the purpose of signing one is; 2) have a general idea of what assets he or she owns and; 3) know who his or her immediate family member, or heirs, are.
Finally, testamentary capacity refers to the capacity AT THE TIME OF SIGNING the Will—not the week before or the week after. People are often shocked to learn how broad the definition is when it comes to determining that someone diD have the requisite testamentary capacity. If you are concerned about a loved one’s Will, consult with an estate planning attorney right away.
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- Leaving Assets Can Be Tricky – Part 3 - August 13, 2020
