How do you know if someone is of sound mind when he or she makes a Will? And, if you don’t think that a loved one was of sound mind when his or her Will was made, can you challenge the Will?
The legal term for being of sound mind is “testamentary capacity”, and there are a number of elements that go into having testamentary capacity. A person can challenge a Will on the basis of lack of testamentary capacity. In order to do this, he or she has to prove that one of these elements was missing at the time the Will was signed.
Generally, a person making a will (called a Testator) has testamentary capacity if he or she understands:
- That he or she is, in fact, making a Will;
- The consequences of making a Will;
- What property he or she owns, including a general understanding of the amount of property, and its value.
- Who are the “natural objects of the Testator’s bounty”. This usually means the Testator’s next of kin.
Just because a Testator is elderly or ill, doesn’t mean he or she lacks testamentary capacity. Without strong evidence, like a doctor’s testimony that the Testator lacked capacity, it’s hard to prove in court that a Will should be invalidated on this basis.
What if you’re concerned that your loved ones will challenge your Will, claiming that you lacked testamentary capacity? There are steps you can take when making your Will to prevent this kind of challenge, such as having a doctor certify in writing that you have the mental capacity to make your Will. It’s important to let your estate planning attorney know your concerns, so that he or she can help find the right solutions for you.
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