How to Determine if Someone Has Testamentary Capacity

How to Determine if Someone Has Testamentary Capacity

Testamentary capacity refers to the legal ability of a person to make a valid will. A person who creates a will must be “of sound mind ” for the document to be legally binding.

In situations in which someone challenges a will, one reason is that the challenger believes the testator (the person who created the will) lacked the mental capacity needed to create a valid, legally binding will. To demonstrate testamentary capacity, the testator must:

  • Fully understand the nature of making a will and the effects of his or her decisions in the will-making process.
  • Understand the nature and extent of the property of which he or she is distributing to heirs and including in trusts and charitable donations.
  • Have no mental disorder that in any way affects or damages the decision making or other faculties used to distribute property through a will.
  • Be sober at the time of developing the will.
  • Not be subject to any undue influence from any other party, as all decisions must be those of the testator.

In most cases, it is presumed that the testator has testamentary capacity unless proved otherwise. The testator simply must understand all information relevant to the estate planning decisions being made, including any reasonably foreseeable consequences.

In some cases, it may be beneficial to have a physician certify that the person making the will has the testamentary capacity to do so and is “of sound mind and body.” This can help prevent potential will contests made on the basis of lack of testamentary capacity.

For further information on the requirements that make a will valid, consult an experienced Tampa estate planning lawyer with BaumannKangas Estate Law.