Protecting Estates.
Protecting Legacies.

Lack of capacity when making a will

When a loved one dies, their will is a crucial document outlining how to distribute their assets and possessions. However, sometimes, disputes arise over the validity of a will.

A common reason for contesting a will is the alleged lack of capacity by the testator, the person who created the document.

What is testamentary capacity?

Testamentary capacity refers to a person’s mental and legal ability to create a valid will. The testator must possess the following:

  • Understanding: comprehend the nature and extent of their property and the significance of creating a will
  • Freedom from undue influence: free from anyone trying to manipulate their decisions
  • Memory and recollection: remember and acknowledge their family members, friends and the distributions they intend to make in the will
  • Rational decision-making: able to make logical decisions regarding the distribution of their assets

According to a survey, only 33% of Americans have formal plans for their estates. The presence of a will is valuable but can present problems if the person did not have cognitive capacity when they made it.

What indicates a lack of capacity?

Some common signs that might indicate a lack of capacity include compromised cognitive impairment, delusions, severe mental illnesses or medication side effects.

If you have reason to contest a family member’s will, you must provide evidence demonstrating your loved one’s inability to meet the capacity criteria. Proof can include medical records, expert testimony and witnesses who can attest to the person’s mental state at the time of the will’s creation.

You want to ensure your loved one’s will accurately reflects their wishes. With solid evidence and an understanding of the complexities of this legal process, you can work to protect the integrity of the will and honor the true intentions of your family member.

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