As stated in the four previously published articles, estate planning is a critical part of one’s life, especially as you get older and/or bring children into the world. The other three articles covered things such as fraudulent signatures and undue influence and how these can affect the validity of an estate plan. When planning for your estate, one of the most important things to do is ensure that your estate plan is able to hold up to legal scrutiny. An additional way your estate plan could face scrutiny is a lack of testamentary capacity.
Let’s say your mother works hard with a highly qualified estate planning attorney to create a will that follows all the state guidelines. Once he signs the will, she believes everything is set in stone. She even made the wise decision to reference some of these earlier articles to avoid any major pitfalls. No undue influence is detectable as discussed in the second article of the “Challenging Estate Plans” series. The signatures are all correct and forgery isn’t a question. Despite all these things, your brother decides to call into question your mother’s “testamentary capacity” and the case is now an ongoing legal battle.
How Do We Define Testamentary Capacity?
Testamentary capacity refers to how capable someone is of making a valid will. Out of the four possible challenges established, the testamentary capacity of a testator is the most difficult to define. It is more difficult to define as it mostly falls under the individual circumstances and judge’s ultimate opinion if a case is brought to trial. First and foremost, an age requirement is presented as the most basic standard for testamentary capacity. Different states have different age limits, but it is most often set at 18 years old. Your estate planning attorney will be able to help define the specific age parameters. Another key component of testamentary capacity is understanding the true nature and range of the estate being written into the will. Along with this also comes the understanding of what your will means in terms of what gets distributed to a given individual and how this can affect the potential gains and losses of other benefactors.
Case Examples
- Marissa has approximately $2.8 million across two bank accounts. However, due to retrograde amnesia caused by damage to the hippocampus, she believes all the money she has to her name is the $100 bill in her wallet and some spare pocket change. Even though Marissa signs the will with the understanding that she is signing a will clarifying her two kids will get equal amounts of her estate, the will could be invalidated because she doesn’t really know the extent of her assets. While she’s actually leaving $1.4 million to each of her children, due to the brain damage and amnesia, she could believe she’s only leaving each of them $50.27.
- Bill knows that he has $250,000 in his bank single bank account. Unfortunately, Bill can’t remember that he has four children when he creates a will and signs it – even though he understands with perfect clarity that he is signing end-of-life documents. In his will, Bill expresses that he wants all $250,000 to be left to the kind nurse he refers to as Ms. Sally who takes care of him at the retirement facility. Bill’s will would be deemed invalid because he doesn’t understand that he has surviving family members known as natural objects of bounty.
- Max knows that he has approximately $1.4 million in the bank and an additional $400,000 tied up in a stock portfolio. He is able to identify that he has two children and who they are as he communicates with them daily. Max decides to sign a document but believes it to be a contract for an electric company. In all actuality, the document he signs is a will that offers 62% of his assets to his daughter, Sarah, and 30% of his assets to his son, Malik. It is determined that Max doesn’t have testamentary capacity because he didn’t realize he was signing a will. Therefore the document could be challenged.
In all of the above examples, there was a lack of testamentary capacity during the time they signed the will which invalidates the document. These examples beg the question of how can we know whether or not a person has the testamentary capacity to sign a will during the moments they are signing it? The answer is complex and subjective, but can ultimately be boiled down to the fact that we can infer that from their actions and thoughts in the moments leading up to and immediately after they signed the documents, as well as during the moment.
In addition to inference, an estate planning attorney can verify a person’s testamentary capacity by asking them questions that verify knowledge of their identity, date, time, location, and personal details such as their children’s names. In the situation that the estate plan is contested, the attorney can even hire a geriatric psychiatrist to evaluate/determine a client’s testamentary capacity.
