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What is Testamentary Capacity?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 06 November 2016
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Testamentary capacity is a term used to describe someone's ability to make a will. This includes the legal ability as well as the mental ability of the testator. In order for a will to be valid, it may be necessary to demonstrate that the testator has testamentary capacity. Wills are sometimes contested by disgruntled heirs who try to dispute the testator's ability to make the will, or that undue influence was involved in the making of the will.

Legally, someone must usually be an adult in order to make a will. Minors may be allowed to make wills in special situations. Mentally, someone needs to be capable of understanding the consequences of his or her action; the testator, in other words, must understand that a will is being made and must understand how wills work and what he or she is doing. Mental illness is not a barrier to testamentary capacity, and conditions such as dementia are not necessarily barriers either, as long as it can be demonstrated that the patient was in a lucid period when the will was being made.

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Several conditions can be used to demonstrate the testator's testamentary capacity. The first is awareness that a will is being made, and an understanding of how property is conventionally divided, even if the testator opts to make bequests differently. In other words, the testator knows what spouses and children usually inherit, and if these people are left out of the will, the testator is making a conscious choice to exclude them. The testator also needs to have a knowledge of the property she or her holds.

Someone with testamentary capacity is sometimes said to be “of sound mind and memory.” Witnesses are sometimes asked to be present during the will's drafting so that they will be available to testify in the event that the will is contested. In addition, sometimes lawyers videotape the proceedings so that they can demonstrate testamentary capacity on the part of the testator, and was acting in this capacity.

One way to avoid disputes over testamentary capacity during probate is for a testator to make family members and friends aware ahead of time about aspects of a will which might be controversial. If someone is informed in advance about unusual bequests or actions undertaken in a will, he or she will be prepared and will be less likely to contend that the testator lacked the capacity to make a will.

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