In order for a will to be valid, certain legal requirements need to be met. One of these requirements is that the person making the will, known as the testator, has to have testamentary capacity, or the legal capacity to make a will. In Texas, testamentary capacity comes with two components.
First, you must be:
- 18 or older,
- Currently or formerly lawfully married, or
- A member of the U.S. armed forces.
You also must be of sound mind. This means that at the time you make your will, you have to be able to understand:
- What it is you are doing (i.e., the fact that you are making a will)
- The consequences of making a will
- The nature, extent, and value of your property
- The natural objects of your bounty (i.e., the family members who would normally be your beneficiaries)
- How all these elements relate so as to form an orderly plan for disposing of your assets.
What if you have a loved one who was very elderly or very ill when he or she made a will, and you don’t believe the will reflects your loved one’s true wishes? One method of contesting a will is to prove that the testator lacked testamentary capacity at the time the will was made. However, proving this involves more than simply showing that the testator was very old and frail. The law presumes that a testator has the necessary capacity, and it’s up to the person challenging a will to show that, at the time the will was made, one of the above elements was lacking.
If you’re concerned that your loved ones might challenge your will on the basis of lack of testamentary capacity, tell your estate planning attorney. There are steps you can take to establish capacity, and your attorney can give you sound advice as to the best way to proceed.
Stephen A. Mendel, Estate Planning Attorney
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