08/19/2017










Who Has the “Capacity” to Make a Will?

Estate Planning Lawyer Assists Long Island Residents with Creating Wills and Trusts

older man and caregiverWhen you start the process of estate planning, you will hear various terms. One that is important is that of “capacity.” When it comes to creating a will, one must have the proper capacity to do so. As the testator (the person whom the will is for), you must have the capability to not only create, but also sign, your legal document. The statutes are clear as to what constitutes testamentary capacity; within the statute, it states that a testator must be of sound mind to create a will.

What is “of Sound Mind?”

While the statute might specify that a person must be of sound mind, it is important to understand what constitutes that form of testamentary capacity.

The testator has sound mind at the time of the draft and execution of the will by knowing the objects of the estate, the property possessed, and what he or she wants to do with that estate. Further, he or she could still have a sound mind even if age or disease impairs mind or memory – what’s most important is that testators have an intelligent knowledge of their estates and their wishes.

To determine if a person is of sound mind, the courts typically look for three things:

  • Knowledge of his or her bounty. This refers to the knowledge of relatives and beneficiaries that might be named in the will. Understanding who they are, how you wish to distribute to them, and where they stand regarding your estate qualifies as part of the capacity. If a person does not know the beneficiaries by name or who they are due to a mental illness, he or she may not be considered of sound mind by the courts.
  • Knowledge of property and possessions. Furthermore, a testator must know what his or her estate consists of in terms of property. This does not mean that the testator must know every asset – even a person of sound mind might not know this. Rather, the testator must know what property is intended to be given to beneficiaries. If only one beneficiary is named in the will, there is no need to recall any property.
  • Desires for property within the estate. Furthermore, a person needs the capacity to know how he or she wants to distribute the estate to beneficiaries.

Testamentary Capacity is Not the Same as Business Capacity

A person running a business has a higher capacity requirement than the requirement for drafting a will. Testators can still be of sound mind regardless of whether they are ill, weak, or old. Physical weakness is not ground for incapacity unless a mental capacity issue exists, as well. Faulty memory due to age – not disease – is also not grounds for capacity questions.

Contesting a Will Based on Capacity

If you feel that an estate plan was drafted when a loved one was not of sound mind, then you do have the right to contest that will in probate court. However, you must prove that the testator lacked the mental capacity to execute that will at the time when it was signed.

For information about testator capacity or for assistance with a will contest, schedule a free consultation with the Law Office of Andrew M. Lamkin at 516-605-0625 or consult with an estate planning attorney online.




Like us on facebook

Attorney Andrew Lamkin on G +