A will must be executed by a testator with testamentary capacity according to state law. Generally, testamentary capacity means that a testator was of age (usually 18 years old) and of sound mind at the time of signing. Witnesses who sign wills are often asked to verify that the testator met the requirements for testamentary capacity. However, wills are sometimes still contested on the basis that the testator lacked the proper testamentary capacity when they signed the will.
Wills Forms: 50-State Resources
Justia provides a comprehensive 50-state survey on wills and applicable state laws, including each state’s requirements for testamentary capacity.
Testamentary capacity requires that a testator meet both a state’s age requirement and a state’s mental state requirement. It is usually easy to determine whether a testator meets a state’s age requirement, but other testamentary capacity requirements, like the requirement that a testator be of sound mind, are sometimes harder to verify.
Some courts evaluate whether a testator was of sound mind when executing a will by establishing whether they had a basic understanding of their life and control over their faculties, whether they had an understanding of the nature and extent of their property, whether they could identify their heirs, and whether they understood how their will would affect their heirs’ right to inherit.
Evidence of Mental Incapacity
An individual contesting a will (sometimes called a "contestant") due to a lack of testamentary capacity may introduce evidence that the testator lacked the requisite mental capacity at the time that the will was executed. The contestant must overcome the presumption of testamentary capacity based on the signatures of witnesses to the will.
To establish mental incapacity, the contestant may introduce evidence of a testator’s cognitive impairments. Cognitive impairments, such as learning disabilities or dementia, do not automatically create a lack of testamentary capacity but may be evaluated with other evidence to determine whether the impairment would have had a substantial effect on the testator’s ability to competently execute a will. A cognitive impairment likely to influence the testator’s ability to understand their life and control their faculties, understand the nature and extent of their property, identify their heirs, and understand the impact of their will on their heirs’ right to inherit may lead to a finding that the testator did not meet the mental state requirement of testamentary capacity.
Guardianship and Capacity
An individual previously determined by a court to lack the mental capacity to make decisions for themselves, such as a person under a guardianship, may be unable to create a valid will without court permission.
Testimony from witnesses, lawyers, doctors, and psychologists, as well as medical records, may be persuasive in establishing mental incapacity. If a contestant is unable to provide evidence of the testator’s mental incapacity at the exact moment of the will signing, they may still introduce evidence of mental incapacity near the time of execution. However, the closer in time that the evidence of mental incapacity is to the moment of execution, the more compelling the evidence may be.
Defending a Will Contest Based on Lack of Testamentary Capacity
Evidence that a testator had the requisite testamentary capacity to execute a will may include testimony from witnesses and lawyers that the testator displayed knowledge and understanding of their property, their heirs, and the legal effect of their will. Medical records or testimony from doctors and mental health professionals may also help establish that the testator exercised adequate control over their faculties at the time of execution. Finally, evidence of the testator’s reasoning for unexpected provisions in a will, such as disinheriting a son because, as the testator told his attorney, the son was extremely wealthy, may help establish that the testator did not lack testamentary capacity.