Estate Planning is essential for many reasons, which are set forth in prior articles. Links to these articles are set forth at the end of this article. This series focuses on how an Estate Plan could be challenged. This series shows the importance of doing Estate Planning in the right way. The first article in this series focused on formalities. The second article in the series examined undue influence. The third article in the series looked at fraud. This article will focus on testamentary capacity.

Let’s say your father signed a Will. He avoided all the pitfalls of the prior article. Your father went to an experienced estate planning attorney who made sure the execution of the Will met with your state’s requirements. There was no undue influence which was discussed in the second article in the series. The signature was not fraudulent, as discussed in the third article in the series. However, your father still had to have “testamentary capacity” when he signed the Will.

Testamentary capacity varies a little from state to state. But, it boils down to whether the person knew what they were signing and what impact it would have. So your father, in this case, would need to know the extent of his assets, who his “natural objects of bounty” are, and what the Will would do.

Let’s look at examples in which each of these three requirements is violated. John has $1.3 million in the bank. However, due to amnesia, he thinks he only has the $20 bill in his wallet. He signs a Will which he knows is a Will and leaves everything to his children equally. The Will could be invalid because John doesn’t have testamentary capacity because he doesn’t know the extent of his assets.

Let’s say Betty knows exactly how much money she has, $1.5 million. But she can’t remember that she has children and she signs a Will (which she knows is her Will) leaving everything to the nice lady who brings her breakfast every morning. Betty’s Will would be invalid because Betty doesn’t have testamentary capacity because she doesn’t know her “natural objects of bounty,” i.e., that she has children.

Let’s say Ralph knows exactly how much money he has, $2 million. He knows exactly who his natural objects of bounty are, his two children with whom he speaks daily. He signs a document which he believes is a contract for satellite television. In reality, it is a Will. Ralph does not have testamentary capacity because he doesn’t know the effect of the document he signed and the Will could be challenged.

It doesn’t matter that testators in the examples above had not been adjudicated as incompetent. Each of them lacks testamentary capacity at the time they signed their Will and other estate planning documents, which is the relevant factor.

How can we know if a person has testamentary capacity at the moment they signed the documents? We can infer that from their actions in the moments before and after they signed the documents.

If an estate planning attorney wants to verify the person’s capacity, they can ask them questions that show they know their identity, location, and date, as well as other information. If the situation calls for it and the Estate Plan has a high likelihood of being contested (due to an unusual disposition or family situation), the attorney may hire a geriatric psychiatrist to evaluate the client to document the client’s testamentary capacity.

There are many ways an Estate Plan could be invalid and not carried out. By consulting an experienced Estate Planning attorney who focuses their practice in the area, you can minimize the risk of your Estate Plan being invalid.

Reasons an Estate Plan Could Be Challenged articles:

Part 1: Formal Requirements

Part 2: Undue Influence

Part 3: Fraud

Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com