Testamentary Capacity in Probate Cases

In probate law, the legal term for a person’s legal and mental capacity to create or amend a lawful will is called testamentary capacity. It can be grounds for a will contest, where the testator lacked testamentary capacity due to reasons of mental health, such as dementia, insanity, senility, and other reasons for unsoundness of mind that rendered them incapable of making a will. Only a small percent of will are contested, and the burden of proof will fall on the party contesting the legality of the will. This will be through very clear and conclusive evidence did lack the testamentary capacity to make the signed will legal.

In order for a will to be valid, the decedent (deceased who made the will) possessed a mental capacity to understand: (1) the properties he or she owns, (2) the people who will inherit these properties or are the natural beneficiaries, (3) the meaning and purpose of a will and what his disposition is, and (4) the comprehensive plan for property distribution. The importance of the decedent’s testamentary capacity protects the decedent and the beneficiaries who may not get most of the estate due to misunderstood realities or inappropriate influence of anyone care for the decedent when he or she was alive.

The need for a testamentary capacity of the decedent should only be proved during the execution, modification, or revoking of the will. According to the website of Peck Ritchey, LLC, it will be the attorney’s ethical duty to evaluate the testator’s capacity, even without the help of a professional and just relying on their own judgment, because not doing so may make a part or the whole can be nullified. Although it may seem like a very small percent (1-3 percent) of will are contested due to lack of mental capacity, it is still a substantial amount considering the millions of Americans being probated every year.

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