This content is researched and written independently of the views or opinions of Online Will Makers' editorial team. Online Will Makers may earn a commission from purchases of products featured on this website. Full disclosure available here.

Testamentary Capacity in Estate Planning Explained

Testamentary Capacity in Estate Planning Explained

Picture this: you’ve decided to draft a last will and testament as part of your estate plan. But as you start considering which of your assets you want to leave to your relatives, you realize that you don’t want any of your monetary possessions or property to go to your family. Instead, you wish to donate everything you own to a charity organization, scientific research, or another good cause. Or maybe you’re planning to exclude one or two close relatives (who would traditionally be entitled to a portion of your assets) out of your will.

Well, this seems easy enough. It’s your property, so you should be able to leave it to whomever you want. But in situations like this, simply creating a will may not be enough to ensure that your assets are distributed according to your wishes. After all, people can be upset about missing out on their expected inheritance and decide to contest your will in court. And if they can prove that you were not of sound mind at the time of making the will, the court will deem the document invalid. In this article, we will explain what the mental capacity of a testator is, why it is important, how a court may determine a testator’s mental capacity, and what you can do to ensure that your will is deemed valid.

What is the Mental Capacity of the Testator?

Mental capacity, or testamentary capacity, is one of the main requirements for people who are creating a will. To have testamentary capacity, the testator has to be of sound mind at the time of making a will. To legally have the mental capacity to execute a will, a person needs to:

  • Understand what property and assets they own.
  • Know their family members and friends and understand the extent of their own relationships with them.
  • Be free from severe mental or psychological delusions brought about by injury or illness.
  • Understand that by creating a last will and testament, the testator is providing instructions on how their assets should be distributed after their death.

What Happens When Someone Contests a Will in Court?

When a person who has made a last will in testament dies, their will is submitted for probate. During the probate process, the court determines whether the document is valid and can be used to determine asset disbursement (i.e who gets what). While the will goes through the probate process, it can be challenged by interested parties. These are usually heirs of the deceased, creditors, and beneficiaries listed in the current will or a past version of the will.

However, an interested party can’t challenge a will simply because they are not happy with their inheritance (or lack of inheritance left in the will). Instead, they need to show a legal reason why the document should be deemed invalid by the court. Several circumstances can cause a court to find a will invalid, one of which is a lack of testamentary capacity.

It is important to remember that testators have a presumption of mental capacity, so the burden of proving that the testator was not of sound mind when they created the will lies on the person seeking to contest the will in probate court.

Interestingly, despite a common belief, it’s not easy to prove someone’s lack of testamentary capacity. Even people at advanced stages of Alzheimer’s disease or dementia can create a legally valid last will and testament if their mental capacity varies and they experience lucid periods from time to time. If the person makes and signs a will during a lucid period, and meets all the requirements for testamentary capacity, the document will likely be ruled as valid by the court.

It’s important to mention that the requirements for testamentary capacity are much lower than in other areas of the law. For instance, a testator may have enough mental ability to create a will, but at the same time, they may not have enough capacity to enter a contract. Essentially, the law will not interfere with the way someone chooses to distribute their property unless there are clear signs that the person was not of sound mind.

Things You Can Do To Prove Mental Capacity

If you suspect that someone may try to contest your will after your death by alleging that you lacked testamentary capacity, you need to take steps to show that you were of sound mind at the time of making a will. Here are a few things you can do:

Take care of your mental health – while mental health issues were often stigmatized in our society in the past, today, most people dedicate time and resources to maintaining their mental health. Remember, prevention is easier, cheaper, and more effective than treatment. Nowadays, you can use online therapist sites to find a professional who can help you deal with past trauma, work through your issues, and keep your mind healthy. Mental health professionals can also spot emerging psychiatric and neurological issues early on and refer you to a specialist for further evaluation.

Create your estate plan in advance—if you make your will before your physical or mental health deteriorates, it will be more difficult for people to contest the document.

Get a doctor to certify your mental health—you can get evaluated by a psychologist, therapist, psychiatrist, or another mental health professional to get further proof of your testamentary capacity. This is especially important if you suffer from disorders such as dementia or Alzheimer’s, or are taking medications that might influence your lucidity.

Sign the will in the presence of a lawyer and two additional witnesses—even if you’ve made your will using an online will maker website, you can hire a lawyer to check the document and sign it in their office in the presence of witnesses. These people can testify to your mental state in court if it becomes necessary later.

Make a video—you can videotape yourself before, during, and after signing the will to prove that you were of sound mind. Be sure that the video is time stamped and that your heirs and executor can easily access it when needed.

Explain your reasoning—if you choose to leave someone out of your will, you can explain it in the document or create a separate document stating your reasons to minimize the chances of the person successfully contesting the document.

Leave $1 – as an alternative to the previous method, you can leave the person you’re purposefully disinheriting $1 to show the court that you didn’t forget about them and prevent them from contesting the document.

Concluding Words About Testator’s Mental Capacity

Testamentary capacity is one of the main requirements for last will and testament testators. If someone can show that the testator lacked mental capacity when making and signing the will, the document will be ruled invalid by the court. If you suspect that someone may try to contest your will on the grounds of lack of testamentary capacity, you can take extra steps to prove that you were of sound mind when making the will. You can do this by getting evaluated by a mental health professional, signing your will in the presence of a lawyer and two witnesses, or making a video of the will signing process.