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Testamentary capacity: Preventing doubts about yours

Oftentimes, people put off developing an estate plan – even a simple will – until they’re well into their senior years. One problem with this approach is that the older someone is when they put their estate plan in place, the more likely it is to be disputed.

Loved ones may have doubts about whether the will creator was of “sound mind” and understood the provisions they included (or didn’t include) in the will. In legal parlance, these disputes may be concern the “testamentary capacity” of the person who wrote the will (the testator).

What does testamentary capacity mean?

When it is said that a will creator has testamentary capacity, this means that the person fully understands what a will is and the consequences of the provisions they include in it, including:

  • What their assets are and their value
  • Who their heirs and other beneficiaries are and their relationship to them
  • What they’re leaving to each beneficiary and the potential consequences of doing so
  • Which person(s), if any, they’re obligated to provide for in their will
  • That the document they sign correctly reflects their wishes

It’s important to note that there are different standards for capacity for other types of estate plan documents, such as trusts and power of attorney (POA) documents.

Minimizing the chances of a will challenge based on testamentary capacity

It always helps to talk with your loved ones about your estate plan while you’re developing it or soon after. You don’t need to provide details, but it will help if they understand your general reasoning (even if they don’t agree with it) and are comfortable that you’re not confused or the victim of undue influence by someone – either within the family or outside it.

You may also be able to ask your doctor to sign a document attesting to your testamentary or other required capacity to develop the documents in your estate plan. They may also be able to refer you to someone who can perform a thorough assessment to determine your capacity.

Seeking experienced legal guidance as you put your will and other estate planning documents in place or if you modify documents already in place can also help your loved ones have confidence that you were fully aware of the contents of your estate and the choices you made for passing them on. As a result, the chances that they’ll contest your wishes will be minimized accordingly.