Testamentary Capacity

To execute a valid will, a testator (person making the will) must have testamentary capacity. Testamentary capacity refers to the testator’s mental state. Specifically, the testator must be able to understand that he or she is making a will, what a will is, what property the testator has to dispose of, and who are the “natural objects of his or her bounty” (the people a testator would normally name as beneficiaries). A person who is able to manage his or her financial affairs likely has testamentary capacity.

A testator must have testamentary capacity at the time he or she executes the will. You may be surprised to learn that a person can execute a valid will during a “lucid interval” even if he or she lacks capacity immediately before and after. However, evidence that the testator lacked capacity near the date the will was executed can be used to prove the testator lacked capacity at the time of execution.

For many people who want to make a will, testamentary capacity is not an issue. But an experienced College Station wills and trusts attorney will be alert for clients whose wills might be challenged on grounds of lack of testamentary capacity. A knowledgeable wills and trusts attorney may forsee a challenge to a client’s will when the client wants to disinherit a spouse or children or wants to make large bequests to people outside the family. Other cases that may cause concern include clients who are frail or sick, who are in the hospital when they execute a will, or who have been diagnosed with Alheimer’s disease or other forms of dementia.

In any of these cases, a skilled College Station wills lawyer will take steps to preserve evidence of the client’s testamentary capacity at the time he or she executed the will. There are a number of things that can be done to preserve evidence of testamentary capacity.

For example, the will can be witnessed by the testator’s personal friends. Close friends will be able to provide more convincing testimony than strangers that the testator knew what he or she was doing when executing the will. If an employee at the law office serves as a witness, he or she can write up a dated statement after the will is executed describing the testator’s behavior.

The testator can reduce the likelihood of a successful challenge by executing the same will on multiple occasions. Or, the testator could execute the will on a day that he or she handles other transactions, such as banking or paying bills, that show mental capacity.

If you need assistance with your estate plan, including preparation of wills, trusts, or other estate planning documents, contact the College Station TX estate planning attorneys at the Peterson Law Group. Simply phone 979-703-7014 to schedule your initial consultation.

About Chris Peterson

Chris Peterson is an attorney and the owner and founder of Peterson Law Group, a Texas law firm with offices in Bryan/College Station and Kingwood. He mainly practices in the areas of Estate Planning and Business Planning. Chris is also a Certified Estate Planner. Besides his law practice, Chris is a serial entrepreneur and community volunteer. He is known for his cutting edge law practice that utilizes technology to deliver efficient, excellent work.