Testamentary capacity: What to know about this legal threshold

| Aug 24, 2020 | Estate Planning

Cognitive function is an essential element when it comes to creating a legal document, whether a person is agreeing to get married or deciding how to distribute property after death. If someone’s mental capabilities are in question, anything he or she signs could face legal scrutiny.

For instance, a person must have testamentary capacity to execute a will.

What is testamentary capacity?

The legal term testamentary capacity refers to a person’s mental function and abilities when signing or changing a will. It is not the same as the capacity to contract, and there is no precise measurement for it.

Generally, a person has testamentary capacity if he or she intends to create a will and understands what a will is, what assets he or she has and who the person’s heirs are and who the beneficiaries are.

Understand, though, that while testamentary capacity is a legal concept, it typically requires confirmation and support from medical professionals. It is not black and white, and may vary by time of day, and day of week.

Signs of incapacity

Testamentary capacity is not necessarily an easy thing to judge, especially when cognitive decline is gradual and associated with getting older. Parties may have fewer interactions with a person, making it difficult to know if and to what extent someone may be experiencing memory loss or mental incapacity. Further, some conditions could be subjective.

That said, there are signs every person should look for when assessing capacity. Red flags could include:

  • Short term memory loss
  • An inability to communicate
  • Confusion regarding simple concepts and math
  • Struggling with decision making
  • Feelings of panic or paranoia
  • Having hallucinations

These could all point to a compromised capacity that may render a person incapable of executing a will.

However, to know for sure, it can be crucial to seek legal and medical guidance if someone’s capacity is in question.

Whether you are creating a will or challenging the will of a loved one, establishing testamentary capacity will be critical. As a testator, you can protect yourself by having witnesses who can attest to your mental state when signing your will. You might also make a video recording although, if videoed, it is best to make sure it is professionally done. . If you are a loved one, keep track of your concerns regarding the other person’s mental faculties and any medical diagnoses he or she receives.