Capacity and Contesting a Will

You always hope your loved ones will understand and abide by your final wishes, yet the stressful time after losing a loved one can bring hurt feelings and misunderstandings when a will is read. Family members who feel they have inadvertently been overlooked in the will or feel that someone else received more than their fair share of an estate, as well as blended family issues, are often the motivating factors. These issues in and of themselves are not legal, valid reasons for a will contest, but a valid reason for contesting a will often centers around the capacity of the person creating the will.

Lack of Capacity

In order to create a will, a person must have the mental capacity to do so. They must be able to understand the following:

• That a will is being made
• The approximate value and makeup of their assets
• Recognition or identification of close relatives and friends
• The logical distribution of their property according to the first three elements above.

The legal term for this capacity is called ‘testamentary capacity.’

Adults are presumed to have the capacity to make a will, and contesting a will with the lack of capacity reasoning typically revolves around charges that the testator, the term used for the person making the will, lacked the mental capacity to make a will due to dementia, senility or insanity.

Using an experienced estate planning attorney to draft a will can help avoid will contests later on. Often, an estate planning lawyer will ask a series of questions of the testator before they execute the will. These questions often include:

• The testator’s knowledge of the extent of their estate;
• The names and ages of their heirs; and
• The effects of the will and significance of the will.

In the event of a later will contest based on capacity, the estate planning attorney can be called to testify and confirm that the testator had the required capacity to execute the will.

There are several other estate planning tools that may be used to establish capacity when drafting a will, and an estate planning lawyer can work with you to avoid issues that can arise upon your passing.