Proving, or disproving, testamentary capacity to make a will

On Behalf of | May 19, 2020 | Will Contests

As with any legal document, when creating your will the law requires that you have the mental ability to do so. This does not mean that you have to be an expert on estate planning. It means that when you draw up your will, you must understand what its terms mean for your estate after you pass away.

This legal requirement is called “testamentary capacity.” The law presumes that you had testamentary capacity at the time you created or changed your will, but someone else can challenge that presumption during the probate process. These challenges usually come from a family member, perhaps because they are unhappy with the size of their inheritance, or they are concerned that a late-in-life change to the will was not the true intention of the deceased.

What can take away testamentary capacity?

Factors that can impact the testamentary capacity of a testator (person who created the will) include:

  • Dementia brought on by a disease such as Alzheimer’s
  • Senility caused by aging
  • Mental illness
  • The testator being under the influence of drugs or alcohol at the time

Proving testamentary incapacity can involve evidence from the testator’s medical history, as well as witness accounts of their apparent judgment, memory and comprehension at the time of the challenged will. If the probate judge determines that the testator lacked testamentary capacity, they will invalidate the will. If the testator had a previous valid will, that could be used instead. If not, Ohio’s intestate law will determine how the estate is distributed.

You need legal support to get through a will challenge

If you are thinking about challenging a will, or if you are the executor to a will that is being challenged, you will not have much hope of success in probate litigation on your own. An attorney who practices probate litigation will help you reach the best possible conclusion to the dispute.


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