In order for a will to be considered valid, the testator (the person who made the will) has to have testamentary capacity. What is testamentary capacity?

Testamentary capacity is the testator’s mental capacity to know: 1) the scope of their property, 2) who their close relatives are and how the will affects those relatives and 3) what a will is and how they are using it to dispose of their property. The testator should also be sane and of sound mind.

Testamentary capacity is vital when a will is being drafted. With the rise of old-age population and dementia, will contests are becoming more and more common. The requirement for testamentary capacity is intended to protect the family and relatives from receiving less or nothing by the will because of the testator’s insane delusions or undue influence exerted on them.

Testamentary capacity is essential at the time the will is executed, amended or revoked. The testator could have mental instability over time, but if there are times when they are lucid and if the will is executed, amended or revoked at those lucid moments, the will is valid.

Attorneys are ethically bound to establish the integrity of testamentary capacity of their clients, since that is the key factor in making a contest-proof will. It’s important to note, however, that attorneys are not required to have the capacity professionally evaluated. They can simply rely on their judgment of the testator’s state of mind.

What indicates impaired testamentary capacity? When the estate is disposed of in a way that isn’t to be expected of the testator or that is contrary to their intentions, this is likely evidence of a lack of testamentary capacity. The will could be revoked altogether or only parts of it could be nullified. In addition, there are two indicators of a lack of this capacity – insane delusion and undue influence.

Lack of testamentary capacity: Insane delusion

An insane delusion is not the same as delusion. Insane delusion is a term used in law, especially probate law, and it refers to an idea that is not supported by facts or it is contrary to facts. Furthermore, the testator who has that idea refuses to accept the facts and give up the idea, which is why it is called an insane delusion. Typically, this idea will cause the testator to leave nothing or less than expected to an heir, leading the heir to challenge the will.

It is possible for a person to be medically sane and still have an insane delusion. For an insane delusion to be determined, the testator must have an idea that is contrary to obvious facts and refuse to change their mind even when the facts are presented to them. As to the facts that rebut the insane delusion – they must be accepted as true by every rational person. This means that opinions, beliefs and prejudices are generally not considered insane delusions, because even though they are not always supported by facts, many people think they are true.

Contesting a will based on insane delusion doesn’t imply that the testator did not have a general capacity to make a will, but that the insane delusion they held affected the way the property was distributed.

Challenging the will should prove not only that the testator was irrational, but also that the challenger would have received more if it wasn’t for the insane delusion. Every case is unique and a probate law attorney would know best what approach is to be taken.

Lack of testamentary capacity: Undue influence

It is considered undue influence when someone who is close to the testator influences them to leave more of their estate to that person. Proving undue influence typically requires that the challenger can prove that:

• The testator wasn’t of sound mind
• The defendant received most of the estate
• The defendant had a confidential relationship with the testator

These are the usual requirements that may vary across jurisdictions. However, if all these points were present, it is reasonable to assume that undue influence was exerted on the testator. The defendant must rebut the assumption.

Make sure your will is drafted properly by contacting the Law Offices of Irina Sherbak for a complimentary 30-minute consultation.