Testamentary Capacity Lawyers

What is testamentary capacity?

Testamentary capacity refers to the testator’s ability to understand what they are doing to make a will. To have testamentary capacity, the testator must understand:

  1. The nature and extent of her or his property
  2. The persons who are the natural objects of her or his bounty
  3. The testamentary provisions she or he is making; and he must

Addition the testator must be capable of appreciating these factors in relation to each other and forming an orderly desire as to the disposition of her or his property.

What happens if the testator lacks testamentary capacity?

A lack of testamentary capacity invalidates the will. If the deceased has a prior, valid will, that will be used to administer the estate. If the deceased does not have a prior will, the rules of intestacy apply.

Does any cognitive impairment equate to lack of testamentary capacity?

The presence of a cognitive impairment, like Alzheimer’s or dementia, does not equate to a lack of testamentary capacity. Whether someone has testamentary capacity is a question of fact to be determined by the Court. While medical evidence is helpful, it is not necessarily determinative. In fact, the Court often uses the evidence of witnesses, friends, and family members to determine whether the testator had testamentary capacity.

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