Testamentary Capacity: Too Ill to Will?

June 30, 2016

In Arkansas, any person of sound mind who is eighteen years of age or older may make a Will. A person making a Will is known as the testator. “Of sound mind” has different meanings in different contexts. The legal concept of sound mind as it relates to the ability to make a valid Will is known as testamentary capacity. This concept also applies to the ability to sign a trust . As an estate planning attorney, I am tasked with the delicate assessment of whether a client possesses the required mental capacity to make a Will. So, who is too ill to will?

It is important to note that testamentary capacity deals with mental capacity, not physical capacity. Physical disability, even blindness, does not deprive a person of the ability to make a valid Will. Likewise, old age, impaired intelligence, poor decision making skills, addiction and eccentricities do not equate to testamentary incapacity.

The standards for testamentary capacity are different than standards for determining capacity in other contexts, such as the capacity to drive, contract or make medical decisions. It is a relatively low standard comparatively speaking. Testamentary capacity requires that the testator, at the time the Will is signed, has the capacity to: (1) know the natural objects of his or her bounty; (2) understand and retain the extent and condition of his property; and (3) comprehend the effect and consequences of making the Will. The legal “test” does not require that a person be capable of managing all of his or her affairs.

Testamentary capacity can vary; it does not have to remain constant. The determination of testamentary capacity is made at the time the Will is signed. A diagnosis of mental illness or brain disease does not necessarily deprive a person of testamentary freedom. For instance, a person with dementia may have “lucid intervals,” or periods of time when they do possess testamentary capacity. If a Will is signed during a lucid interval, then it meets the capacity requirement.

Testamentary capacity or the lack thereof is frequently the subject of Will contests and litigation. To ensure that your wishes are carried out after death, make your Will before your capacity could even be called into question. Don’t wait until you are too ill to will.

The author, Ashley Naramore, is an estate planning attorney with Baim Reagler & Naramore, PLLC.

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