Too often, elderly people who have procrastinated in creating a will believe it’s too late to do so. They’re afraid it will be disputed because loved ones will claim that they were too “senile” to understand the wishes they documented.
In legal terms, such disputes revolve around “testamentary capacity.” Typically, a person’s testamentary capacity isn’t questioned unless they’re very old and/or suffering from cognitive decline, mental illness or substance abuse.
So how is testamentary capacity determined?
Testamentary capacity means that a person fully understands what a will is and the consequences of the provisions they include in it. This includes:
- The extent of their estate and its value
- The identities of their heirs and other beneficiaries and their relationship to them
- What exactly they’re leaving to each beneficiary (money, property, a business and so forth) and the potential consequences of those inheritances
- Whom they have any obligation to provide for (for example, dependent adult children or a spouse)
- Whether the final will they sign appropriately expresses their wishes
Note that there are generally different standards of legal competency for other documents in an estate plan, such as a power of attorney (POA) document and trusts.
Proving testamentary capacity
There are several ways a person can prove their testamentary capacity. Having experienced legal guidance is one way. Estate planning professionals can generally recognize whether a client understands their decisions and the consequences of them.
It can also help to have a qualified doctor assess and provide signed documentation of a person’s competency at the time they’re drafting their estate plan. This can help if there’s a challenge to the will or any other part of the estate plan.
Physical health and abilities may have no effect on testamentary capacity
Don’t assume that because you or an elderly loved one is very ill or disabled that testamentary capacity doesn’t exist. Physical health (or the lack of it) is often no indicator of cognitive abilities – although prescribed medications can affect them.
Further, there are some cases in which a person in the early stages of Alzheimer’s or other form of dementia still has testamentary capacity. In fact, when some people get that diagnosis, one of the first things they do is get their estate plan in place.
The best place to start is, as we noted, by getting experienced legal guidance. This can help you determine what additional steps you may need to take to help ensure that your will isn’t challenged unnecessarily and your wishes are carried out.