What is “Capacity” to Make a Will?

What is “Capacity” to…

In order for a legal document like a will to be valid, it must meet certain requirements. One of those requirements is that the person executing (signing) the document must have “legal capacity.” Having the legal capacity to make a will is also called “testamentary capacity.” What is testamentary capacity, and how do you know if someone does or doesn’t have it?

Sometimes legal capacity is like a line in the sand. For instance, in order to have legal capacity to sign certain documents, you must be a legal adult. On the day before your eighteenth birthday, for example, a last will and testament that you signed would not be valid (unless you are an emancipated minor). A minor generally does not have legal capacity to sign a will.

The next day, on your eighteenth birthday, you could sign the same document and it would have legal effect. Did you gain any special amount of wisdom, maturity, or legal knowledge in those 24 hours? Probably not. But according to the law, on one side of the age line you have capacity, and on the other, you don’t.

That said, there aren’t many almost-eighteen-year-olds champing at the bit to make their last will and testament, so that question of capacity probably won’t come up outside of a law school examination. However, there are other reasons a person might not have “capacity” to make a will. Usually, a person’s legal capacity to make an estate plan arises in the context of whether they were of “sound mind.”

What Does it Mean to Be of “Sound Mind” to Make a Will?

In New Mexico, there are few limitations on who may be a testator (person making a will). According to NM Stat § 45-2-501, “(a)n individual eighteen or more years of age who is of sound mind or an emancipated minor who is of sound mind may make a will.” You have to be at least 18 or be an emancipated minor. But in either case, you must be of sound mind.

What exactly does it mean to be of sound mind? You might imagine that a person with Alzheimer’s disease or other dementia, or severe mental illness, is not of sound mind. People with those conditions might indeed lack the capacity to make a will – but not necessarily.

That’s because having sufficiently sound mind to execute a will requires three things at the time the will is signed:

  • Understanding what the act of making a will means (namely, that you are disposing of your property);
  • Understanding the “character and extent” of your estate (in other words, you know what property you have, and how much of it you have);
  • Knowing the “natural objects of your bounty” (in other words, you know who your heirs are — the family members to whom you would most likely leave your property).

So, it is quite possible that someone with dementia would not have testamentary capacity. They might believe that they still owned property that they sold decades ago, and have no idea what they own today. They might not have any idea who their children or grandchildren are. And while they might be able to sign their name at the bottom of a page, they might not understand that by doing so, they are directing how their property should be distributed after their death.

But it is also possible that someone with dementia could have testamentary capacity, if they understood those three crucial things at the time they executed the will. Many people with dementia have lucid periods, at least in the earlier stages of the disease. Similarly, a person could have relatively severe mental illness, but as long as they still know what they have to give away, to whom they want to leave it, and what it means to sign a will, they have legal capacity.

However, in some circumstances, such as a court adjudicating a person insane, a presumption of incapacity arises. Such a presumption can be difficult, if not impossible to overcome.

Proving (or Disproving) Testamentary Capacity

It is always best for testators to make or update their will before there is any question whether they lack capacity to do so. (This is a good argument for why you shouldn’t put off estate planning until “later.”) Unfortunately, people tend to put off estate planning, and life’s changing circumstances may make it necessary to update a will under less-than-ideal circumstances.

If you are helping a loved one make an estate plan, and you suspect that their will might later be challenged during probate on the grounds of testamentary capacity, you should take action to preserve evidence of testamentary capacity at the time they execute the will. For instance, the testator should have disinterested witnesses to the signing who can speak to their state of mind at the time they execute the will. It is also advisable for the testator to be examined by a doctor close in time to the execution of the will; he or she may need to document the testator’s competence.

If you expect to benefit from the will, you should remove yourself as much as possible from the proceedings to avoid allegations that you exerted undue influence on a physically and mentally frail testator to make gifts to you. For instance, perhaps a neighbor or friend could drive the testator to the attorney’s office so there can be no suggestion that you pressured the testator to go and to execute the will. (The neighbor or friend may also later testify as to the testator’s mental state and whether they appeared to understand their actions).

If you have further questions about testamentary capacity or need help making or updating your last will and testament, please contact The Law Offices of Dana M. Kyle to schedule a consultation.

Categories: Estate Planning