Creating a will is all about devising assets according to the testator (i.e., the will-maker’s) true intentions. If the testator does not have the appropriate capacity to create a will, then they cannot devise assets according to their true intentions. Capacity requirements generally include legal age and having the proper mental capacity to make a will, among other factors. If someone creates a will and they are not of capacity to do so, then someone can challenge the will’s validity down the road. Let’s dive into the details on everything you need to know about testamentary capacity.
Age requirements
Part of having the capacity to create a will includes having the proper legal age to do so. Generally, most states require that the testator (a.k.a., the person making the will) is at least 18 years or older. States generally want people to have a certain level of maturity and legal understanding in order to create a will. Otherwise, there may be more room for fraud, undue influence, or other bad faith actions against someone who is under 18 years old.
For example, here is one state statute discussing legal age requirements (among other requirements) in order to create a valid will: Mich. Comp. Laws § 700.2501. It specifically states that, “An individual 18 years of age or older. . . may make a will.”
Mental capacity
Having appropriate mental capacity is also required to create a valid will. State legislatures usually refer to this mental capacity as “being of sound mind.” Why is mental capacity required? Because states want to protect vulnerable people who are not of mental capacity from being taken advantage of and/or not truly devising their wishes according to their real intentions due to a lack of mental capacity.
So, what is considered havign appropriate mental capacity, or “being of sound mind” as most states refer to it? Here are some key elements:
Understanding the act of creating a will
Part of having mental capacity is understanding that you are creating a will. They need to understand that the document they are signing is distributing their assets after they die. For example, one state’s statute on mental capacity (Michigan), explicitly states that “The individual has the ability to understand that he or she is providing for the disposition of his or her property after death.” (Mich. Comp. Laws § 700.2501).
Knowledge of their property
Another aspect of mental capacity is understanding the nature and extent of their property. This helps to prevent errors in property distribution or distributions that aren’t properly aligned with the testator’s intent. * Explain the requirement that the testator knows the nature and extent of their property.
For example, in one recent case from D.C., there was a dispute over whether the testator had knowledge of the property. The court ultimately said that there was sufficient evidence to show that the will-maker had adequate knowledge of his property—There was testimony to show that the testator had specifically talked about his money in his bank accounts, and how he wanted it allocated to certain people. In addition, he signed transfer-on-death deeds, which demonstrates he knew of his real estate. (Govan v. Brown, 228 A.3d 142 (D.C. 2020)).
Knowledge of natural objects of bounty
Knowledge of natural objects of bounty is a very fancy, legal way of saying that the will-maker understands who the people are that are related to him or her and naturally expected to inherit, and the relationships he has with his potential listed beneficiaries. Why does this matter? Because it’s important that the testator is making an informed decision about who they are devising their assets to. For example, if the testator gives all of their money away to their neighbor in a psychosis state because they couldn’t remember who their children were, there may be an argument that they didn’t understand their natural objects of bounty.
Understanding the general nature and effect of the will
The person making the will must understand the consequences of signing the will. This means they understand that by signing it, certain assets will be given to certain people or organizations. This requirement is to avoid undue influence or unintentional distribution.
For example, if a testator suffers from delusions that their sibling is trying to steal their fortune and they completely disinherit the sibling from their will the rational plan for distribution is so distorted by the delusion that they may lack the necessary testamentary capacity. Their decision isn’t based on a sound understanding of the consequences of their actions.
Challenging a will based on capacity of the will-maker
Beneficiaries or other interested parties can challenge the validity of a will based on the argument that the testator lacked capacity to create a will. Each state has it’s own rules on what is required to show a lack of capacity. For example, in D.C., the party must show that testator did not have sufficient memory and mind at the time of executing a will to generally know (1) the property owned, (2) the intended beneficiaries of that property, and (3) the nature of instrument being executed. (Govan v. Brown, 228 A.3d 142 (D.C. 2020)).
Generally, there is a presumption that a will-maker had the capacity to create a will, so the person challenging the will has the burden of proving the lack of capacity. They can do this by showing enough evidence that the will-maker was not of sound mind. People typically use testimony evidence from the witnesses or other evidence to show that the will-maker didn’t have mental capacity.
Bottom line
The bottom line is that testamentary mental capacity is crucial for a valid will. In fact, without it, someone may be able to challenge the will and get it thrown out because the testator (the will-maker) wasn’t of sound mind. The key elements of capacity are legal age, understanding the act of creating a will, knowledge of property, knowledge of natural bounty, and understanding the effect of the will. If you or one of your loved ones has questions about testamentary capacity to create a will, it’s always best to reach out to an experienced estate planning attorney!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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