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What is a lack of testamentary capacity in a will?

On Behalf of | Sep 9, 2022 | Probate Litigation

Lack of testamentary capacity is one of the legal grounds for contesting a will. If proven, the probate court may revoke and set aside the will. As a result, the court will distribute your possessions in line with state laws, and your estate plans could go up in smoke.

For a will to be valid, the owner (testator) must have been legally and mentally competent when signing it. Here is what you should know about this crucial requirement of making a will.

Elements of testamentary capacity

First, the testator must understand what they are doing. They should apprehend the nature of making a will and its effects. They should also be fully aware of the size of their estate and the list of beneficiaries or people they are supposed to provide for in the will.

Most importantly, they should not be suffering from a disorder of the mind that affects their judgment or interferes with their decisions when making the will. Not all mental disorders mean that the testator does not have testamentary capacity. Only those that affect their natural faculties needed in disposing of their property could meet the legal threshold.

Protecting your interests as the testator or beneficiary

If you believe your loved one was not in their right senses when making their will, it is necessary to understand what you need to protect your inheritance. The will may not be an actual representation of their last wishes. However, proving a lack of testamentary capacity is not so straightforward, given the legal complexities involved.

Equally, if you are making a will and want to avoid such issues, there are things you can do to rule out the possibility that you were not legally fit to make your will.


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