Testamentary capacity is one of the factors that determine the validity of a will, codicil, trust or trust amendment. If a testator (someone who writes a will) or a settlor (someone who creates a trust) lacks the required testamentary capacity, their respective document can be contested.
Here is what to know:
Sufficient mental capacity
The mental capacity required for someone to create a will or a trust is typically less than that required to handle business affairs, such as drafting or signing a business contract. But it’s still critical.
When it comes to estate planning, sufficient mental capacity means the testator/settlor:
- Understands the nature of the testamentary act
- Understands and recollects the nature and situation of their property
- Remembers and understands their relations to the people named in their will and trust and those whose interests are affected by the provisions of the document
If a testator or settlor is unable to do any of the following, they may not be mentally competent to make estate planning decisions.
Mental health disorder
If an individual has a mental health disorder whose symptoms include hallucinations or delusions, they may be considered mentally incompetent to make or amend a will or a trust if the existence of the hallucinations or delusions causes them to devise property in a way they would not have done otherwise.
How can you prove this?
If you believe your loved one lacked the required testamentary capacity, gather documents that prove so. This includes medical records showing the existence of mental health disorders that may have impacted their decisions.
A lack of testamentary capacity is a valid reason to contest a will or trust. If you have such a case, get as much information as possible to protect your loved one’s wishes.