Do you understand testamentary capacity?

On Behalf of | Apr 20, 2018 | blog

Challenging a will is easier said than done, as you need to have a reason to move forward with the process. In other words, people can’t contest a will because they feel like they didn’t receive what they deserve.

There are many grounds for contesting a will, with testamentary capacity often at the top of the list.

There is a lot to learn with respect to testamentary capacity, especially if you have reason to believe this has come into play due to the creation of a will.

It’s presumed that all adults over the age of 18 have testamentary capacity. However, this is not always the case.

When it comes to contesting a will, you may stress that the person did not have testamentary capacity, but in some way lacked the mental capacity to create a will. This can be on the basis of dementia, senility, insanity or even the influence of an outside substance.

Of course, there is a big difference between saying a person didn’t have testamentary capacity and actually proving this to be true. Challenging a will on this basis means showing that the testator did not understand what he or she was doing. When creating a will, the person must understand:

  • The type of property and value of property they own
  • The beneficiaries of the will
  • What it means to create a will (and what happens upon their death)
  • How a will impacts the distribution of property upon their death

It’s possible that testamentary capacity could come into play alongside other grounds for challenging a will, such as fraud, forgery, undue influence or insufficient witnesses.

It goes without saying that no one creates a will with the idea that it will be the center of a legal dispute in the future. However, this often comes into play, especially if a loved one believes that issues of testamentary capacity were present.

If you want to push forward with a will contest, it’s important to learn more about the legal process and the steps you need to take. There is a lot that goes into this, and taking the right steps will have a lot to do with how the process unfolds.


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