What Goes into Testamentary Capacity?

For a will to be valid, the creator must have what’s referred to as “testamentary capacity” when creating it. This means you must have the mental ability to fully understand the decisions you are making. The following are the five components that establish testamentary capacity:

• Age: You must be an adult over the age of 18 to establish a valid will. According to the law, children do not fully understand life and death, the value of money and property and the importance of family.
• Will: You must know what a will is and understand that you are creating this type of document while you are establishing it. You must understand that your property transfers only upon death — and the solemnity of the act of creating your will.
• Family: You must know who the natural objects of your bounty are. That does not mean you cannot disinherit them, but you must have the ability to know who they are.  If you are unable to recognize or name your own family members, you likely do not have the testamentary capacity to create a will.
• Property: You must know the extent and general nature of your property. If you regularly attempt to leave behind property that does not actually belong to you, a court would determine that you did not have testamentary capacity to create a will. You must understand the reality of your situation and have a general idea of the kind and value of the property you wish to leave behind.
• Plan: You must be able to create a plan to distribute the property you are providing to your beneficiaries. An eccentric or unusual plan does not necessarily indicate a lack of testamentary capacity, as long as you have met the basic requirements of having such capacity.

It’s also important to note that a mental illness or incapacity does not necessarily signify that you have a lack of testamentary capacity, nor does a delusion or unusual belief. To learn more about this important concept in estate planning, work with an experienced Tampa attorney at BaumannKangas Estate Law.