Because wills deal with inflammatory topics like the dispersal of money, property, and even custody of children, it makes sense that many of these documents are eventually challenged in court. Several of those wills are contested on the basis of a lack of testamentary capacity.
What is testamentary capacity?
In order to execute a will you must have testamentary capacity. There are two requirements you must meet in order to have this capacity. First, most states require that you are at least 18 years old, and second, you must meet the mental standard of a “sound mind.” The age requirement is self-explanatory and is not typically disputed; however, the mental requirement can be a little more problematic.
The definition of testamentary capacity is: the ability to comprehend the nature and extent of ones own property, and the ability to understand the decisions he or she is making regarding the distribution of that property.
When is this capacity most often challenged?
Wills are often challenged for lack of testamentary capacity when dealing with the elderly or disabled. A senior individual who suffers from dementia and a man who has Schizophrenia are both examples of people whose wills might be contested on the basis that they were unable to comprehend the decisions they were making in the drafting of their wills.
How can I avoid this problem?
One strategy to prove that the creator (testator) of a will has testamentary capacity is for an attorney to quiz the testator about current events, in front of witnesses, while reviewing and signing the document. This way, if the will is later challenged, there will be proof that the testator had the requisite capacity.
More than anything, the best way to avoid this problem is to plan early. Draft your will while you are indisputably able, while nobody can question your “soundness of mind.” Tomorrow is inevitable and unpredictable, so it is never too early to plan today.