Lack of Testamentary Capacity

When someone signs a will or trust, the law requires that the person understand the effect of what they are doing.  It is called having testamentary capacity.

To have capacity, a person must be able to:

  • Know what he or she has (the nature and extent of his or her property)
  • Know who he or she wants to receive that property and who would receive it if he or she did nothing (natural objects of his or her bounty)
  • Make and execute an estate plan (make a disposition of the property in accordance with a plan formed in his or her mind)

When a person creates an estate plan without having the necessary capacity, it is invalid and should be rejected.

Claims for lack of testamentary capacity are common in trust contests and will contests.