Testamentary Capacity: The Basics

 

The legal term ‘testamentary capacity’ refers to an individual’s mental and legal ability to make or alter a valid will. Without testamentary capacity at the time a will is executed, it is invalid.

How is Testamentary Capacity Tested?

In most jurisdictions, the test for testamentary capacity required to execute a will is based in case law. The person making or changing their will (the testator) must understand what making a will is and what it entails; they must also understand the extent of the property they are disposing of.

The testator should also be able to appreciate and understand the claims to which their will should give effect, and they should possess no disorder of the mind that could distort their sense of right or inhibit the exercise of their natural faculties regarding the disposal of their property by their will.

Proving Testamentary Capacity

Sometimes, a will may be contested on the grounds that the individual executing it lacked testamentary capacity. This usually happens posthumously, often when a will has entered probate and an aggrieved heir contests it. Where this is the case, the person making the contestation is typically required to prove that the decedent was mentally unsound, causing them to be unable to recall family members or hold insane delusions regarding them.

To resolve such cases, a forensic psychologist or forensic psychiatrist may be called upon to evaluate the decedent’s testamentary capacity by reviewing relevant emails and letters, medical records, and videotape of the will being drafted. Signs of undue influence may also be checked for.

Even if testamentary capacity is found to be lacking, courts may rule that the testator experienced a lucid moment or temporary period of lucidity at the point the will was executed.

The Role of the Doctor

Inheritance and succession planning experts – such as attorney-at-law Edgar Paltzer – know that while countries around the world differ in how they deal with testamentary capacity, in many jurisdictions they follow a ‘golden rule’ whereby a medical practitioner is involved in the process when an elderly person, or an individual who has suffered a serious medical illness, is making or altering a will.

However, in some jurisdictions the solicitor drafting the will assumes responsibility for ensuring the testator has capacity. Solicitors should seek advice from a medical professional if they are unsure about testamentary capacity.

For more information about testamentary capacity, take a look at the embedded PDF.

Testamentary Capacity