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  • Writer's pictureNicole J. Zuvich

Why you need to know about testamentary capacity

Updated: Sep 27, 2022

The best estate plans are specific and clearly articulate how an estate should be handled and distributed when the time comes. Yet, fights over estate distribution come up all the time, especially when a significant number of assets is involved. That may make you nervous, but there are things that you can do to better ensure that your estate is being created in a legally valid and defensible fashion.

Addressing testamentary capacity

One issue that you may have to take into consideration is testamentary capacity, sometimes referred to as mental capacity. In many challenges to an estate planning document, the petitioner claims that the creator of the document lacked the mental capacity to create it in a legally binding fashion, and it therefore shouldn’t be deemed legally enforceable. This can completely undo your entire estate plan.

Generally speaking, in order for the requisite mental capacity to exist for estate planning purposes, an individual must understand the nature of his or her assets and how they are being disposed of through the estate planning document that they’re creating and signing. Typically, this testamentary capacity must only exist at the time of the document’s creation.

Challenges to testamentary capacity

When disputes over testamentary capacity arise, it’s usually in situations where the creator of the document in question developed dementia, Alzheimer’s, or some other medical condition that affects their mental wellbeing. That’s why courts in these circumstances will often look to an individual’s alertness and attention, ability to process information and control mood, and his or her ability to maintain appropriate thought processes. These can be difficult areas to assess, especially if the individual in question has passed away.

Preparation is your best defense

The best way to avoid this kind of situation is to ensure that your estate planning is carried out early and with multiple witnesses who can testify as to your mental competency and your intent. Although there’s a legal presumption that you’re competent at the creation of your estate plan, you should take extra precautions to ensure that you’re protecting your estate and your vision for its future. If you’d like to learn more about proactive steps that you can take to achieve this protection, then please continue to read up on the subject.

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