When you do take the time to carry out your estate plan, you want to make sure that it will be carried out as you wish. Sometimes wills get challenged. That can delay the implementation of your estate plan, but occasionally it can also result in your will getting partially or totally overturned on the grounds of lacking testamentary capacity. It follows that if you want to protect your will against contests, you (and your estate planning attorney) should take measures to confirm testamentary capacity. One such measure is following a testamentary capacity checklist.

The information we present below is here for informational purposes only, and is not intended to be construed as legal advice. If you want personalized legal opinion on your case, don’t hesitate to book your free 30-minute consultation with the Law Offices of Irina Sherbak at 858-208-8900!

The most important points about testamentary capacity

There are a few points to bear in mind when it comes to testamentary capacity.

What kind of capacities are subsumed under testamentary capacity? Testators are deemed capable of making a will if they know: 1) the size and contents of their estate, 2) who their close relatives are and how their estate plan affects those relatives and 3) what a will is used for and how they are going to use it. These criteria have been in use for more than 140 years, ever since the decision in the Banks vs. Goodfellow case.

Is it necessary to get a physician’s report to confirm testamentary capacity? No, it is not. In many cases, estate planning lawyers rely on their own experience and observation in deciding whether a medical examination is necessary or not. In some cases, though, it is advised that a doctor’s opinion is obtained. The golden rule of testamentary capacity recommends a medical examination in cases where the testator is aged and/or has suffered a serious illness. There are, however, questions that the lawyer can ask to establish whether there is a need to suggest the testator see a physician. We will discuss these questions in the next section of the article.

You can read more about testamentary capacity in this post – especially about indicators of impaired will-making capacity and cases where testamentary capacity is lacking.

Testamentary capacity checklist – the general idea of questions the lawyer may ask

Apart from the three basic Banks vs. Goodfellow criteria mentioned above, many more questions are available to estate planners to confirm that the client has testamentary disposition.

If the will is any way controversial (excluding natural beneficiaries, markedly deviating from previous wills, etc.), the lawyer may ask:

• What are your reasons to make changes to the will? (if there have been previous versions)
• What are your reasons for dividing the estate in that way?
• Are you aware how your relative X may feel about inheriting less than expected or nothing?
• Do you understand how this estate distribution will affect relative X economically?
• What are our family relationships like and other members’ relationships?
• Are there any tensions or family disputes that govern your estate plan?

It is also common that the lawyer makes notes while meeting with the client. These notes can include what was explained by the attorney and how the client reacted to that information, whether the lawyer or the client read the will, whether the client asked any questions and if yes, what they were about, etc.

Any evidence of neurologic condition or mental disorder requires an examination by a physician. Signals could be agitation, impulsiveness, disinhibition, aggression, hallucinations and delusions.

It is very important for the client to give an explanation for their decisions if the will is controversial in any way. If the client should harbor any insane delusions this point would bring them up. Insane delusions render the individual testamentary incapable (cognitively and legally incapable of making of a will).

Another sign of testamentary incapacity is a pathological relationship with a caregiver (family member, friend or a professional).

A red flag is if the testator is showing an inability to consistently express clear wishes, if they change their mind often in an attempt to get support at a time when they are feeling vulnerable.

Want an estate planning lawyer who will apply the testamentary capacity checklist?

The Law Offices of Irina Sherbak welcome you to book your free 30-minute consultation with a highly reputed and trusted San Diego estate planning lawyer. Call us today!