Factors to Consider When Determining Testamentary Capacity
For a will to be legally valid, the person who creates it must “be of sound mind and body.” This is known as having “testamentary capacity.”
There are five components to testamentary capacity:
- Age: For a will to be valid, the person creating it must be an adult and fully understand the importance of creating a will. The law does not consider people under 18 to be mature enough for this process.
- Knowledge: Individuals creating a will must understand what a will is and that they are, in fact, establishing one. They must understand the property only transfers after death.
- Family: Anyone making a will must know who his or her family members and potential beneficiaries would be.
- Property: A person creating a will must understand the nature and extent of his or her property. If, for example, a person attempts to leave behind property that either is no longer hers or never was, it is likely she lacks the necessary testamentary capacity to create a valid will.
- Plan: A person who establishes a will must be able to create a plan for the distribution of his property. Just because a plan is unconventional does not mean the person lacks testamentary capacity — so long a will is coherent and logistically sound. It is also important to note that mental illness does not prevent a person from creating a valid will.
For more information on testamentary capacity and will validity issues, contact a dedicated Tampa estate planning attorney with BaumannKangas Estate Law.