“Testamentary capacity” refers to a person’s mind being clear enough to make or change a valid will. This is one of the main requirements in creating a valid will in Nevada. If a person lacks this ability when they make or change their will, interested parties – such as heirs, beneficiaries or creditors – may have grounds to challenge the will in court.
Key elements of testamentary capacity
Testamentary capacity is all about a person’s state of mind, specifically when they’re making or changing their will. At the moment they signed the will, they needed to have understood four key things:
- What making a will means and does: The person must understand they’re creating a legal document that will distribute their property after death.
- What property they own: They should have a general awareness of their assets, though they don’t need to know every detail.
- Who their family members and close friends are: The person should be able to recognize their loved ones and who would naturally expect to benefit from their will.
- How their will gives away their property: They must comprehend the basic effects of their decisions in the will, understanding who is getting what and why.
Remember, it doesn’t matter if the person gets confused about these things later. What counts is that they understood everything clearly when they signed the will.
Signs of potential lack of testamentary capacity
When determining if someone has the mental ability to make a valid will, there are several red flags to watch for:
- Confusion about assets or family members: They may not recognize close family members or have big misunderstandings about what they own.
- Drastic, unexplained changes to the will: They may suddenly make major changes to their will without a clear reason or make sudden decisions that are out of character.
- Susceptibility to undue influence: They might easily make will changes that benefit certain individuals, often in ways that seem out of character or contrary to their previously expressed wishes.
Take note that these signs don’t automatically mean the will is invalid. However, they can raise questions about the testator’s capacity.
Protect your loved one’s true wishes
Concerned about the validity of a family member’s will? Reach out to an attorney who can assess your case and advise on the next steps to take.
