Ellie McManus
Testamentary capacity explained: the mental capacity needed to make a will
Testamentary capacity is one of the things the law looks at when it decides whether a will is valid. Here is what the term means and why it matters.
Writing a will is easier today than it used to be. It still helps to understand the mental capacity the law asks for before you sit down to make one.
Understanding testamentary capacity
Capacity is not always clear cut. It differs from person to person. For someone living with a condition that affects memory and thinking, such as dementia, it can also change over time. A person may have capacity on one day and not on another.
In broad terms, testamentary capacity means the person making the will understands what a will does and can make their wishes known. In the US this is often called being "of sound mind." Each state sets its own standard, so check what your state requires.
Working out whether someone had capacity can get complicated. That is especially true when the question comes up after the person has died.
What happens if capacity is questioned?
If someone questions whether a will-maker had capacity when they signed, a probate court may need to look at it. Probate is the court process that checks a will and oversees the handing out of what the person owned. Probate is run state by state, so the process and the timing vary depending on where the person lived.
If a court decides the person lacked capacity, it can rule the will invalid. For the family, that can mean extra cost and a longer wait while things get sorted out.
In that situation, the executor may need to gather medical evidence from around the time the will was signed. In some states the executor is called the personal representative. Looking back years later can be hard, especially if nobody wrote anything down at the time.
The legal standard for testamentary capacity
Standards vary from state to state. Many US courts use a test with roots in an English case from 1870, Banks v. Goodfellow, which still shapes how American courts think about capacity today. Courts generally ask questions along these lines:
Did the person know they were making a will, and did they understand what a will does?
Did they have a general sense of what they owned?
Did they understand who might expect to inherit from them, such as a spouse or children?
Was any disorder of the mind affecting how they chose to leave their property?
Where the answer to one of these is unclear, the validity of the will can come into question. The exact wording of the test, and who has to prove what, is set by each state.
Steps some people take to create a clear record
Some people like to leave a clear record of their state of mind on the day they sign. That is a personal choice, and it is more common where someone expects a family disagreement. Here are options people use:
Ask a doctor for a short letter giving their medical opinion on capacity, dated the same day the will is signed.
Keep that letter with the original will, and tell the executor where to find it.
Get a formal capacity assessment from a health professional.
Write down the thinking behind any big change to a will, such as leaving someone out.
An attorney licensed in your state can talk through whether any of this is worth doing in your circumstances.
When a health condition is part of the picture
A diagnosis does not automatically mean someone cannot make a will. What matters is whether the person understood what they were doing at the time they signed. Someone living with dementia or the effects of a stroke may still have capacity, and courts look at the moment of signing.
Online wills work well for a lot of people. Where a condition affects decision making, talking to an attorney licensed in your state is one option before making or updating a will. For anything complicated, such as a blended family, a business, or a dispute you can see coming, an attorney licensed in your state is the place to go.
Taking the next step
Making a will is a way of looking after the people you care about. You can write yours online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.