Tag: testamentary capacity

Capacity to Make a Will: What You Need to Know

If your ailing relative wants to make his or her will, the concept of capacity could come into play. Capacity to make a will affects whether the will is valid when the relative’s estate is distributed. If the creator of the will did not have capacity when he or she signed it, the probate court may not enforce its terms.

What Is Testamentary Capacity?

Capacity to make a will (testamentary capacity) is defined as the “mental ability to know and remember who are the natural objects of [your] bounty, to comprehend the kind and character of [your] property, and to make disposition of the property according to some plan formed in [your] mind.” In other words, to make a will you need to understand which property you own and be able to plan out how to distribute the property to others.

How Do You Tell If Someone Does Not Have Capacity?

The probate court must assume that a person making a will has testamentary capacity, unless it is proved that he or she did not. Physical impairments alone usually do not make someone lose capacity. It is more likely that a mental impairment would make someone lose capacity. In other words, the inability to speak or move does not necessarily mean someone cannot make a valid will. But someone with a severe mental impairment such as advanced dementia might not have capacity.

In addition, the appointment of a guardian for someone may be evidence showing the person does not have capacity. But neither physical impairments nor having a guardian are conclusive evidence.

Why Does Testamentary Capacity Matter?

If the person making the will did not have capacity at or around the time it was signed, the probate court may invalidate the will. An interested person such as a relative must “contest” or fight the will in court. He or she has the burden of providing evidence that the testator did not have capacity.

When an interested person wins a will contest, the will in question is disregarded. The testator’s property might pass to relatives via intestate succession or an older will might be used instead. This could drastically affect how the estate is distributed.

Have questions about making your will? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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