When planning an estate, many people are confronted for the first time with the phrase “testamentary capacity,” which is a legal term that refers to a person’s mental capacity to draft a will or create a trust. If a court finds that a person lacked testamentary capacity, then it will invalidate any will that the individual drafted. Generally, courts presume that a person has testamentary capacity. However, it is possible to have a will thrown out based on a lack of testamentary capacity, although doing so requires proof that a testator did not have a full understanding of the consequences of creating a will, which can be a difficult standard to meet. If you have concerns about a loved one’s will or want to ensure that your own estate plan is not contested, please contact a member of our contested estates legal team for advice on how to proceed.
What is Required to Prove a Lack of Capacity?
In order to defeat a claim that a testator lacked testamentary capacity to dispose of his or her estate, there must be evidence that the individual had the mental ability to:
Probate courts automatically presume that testators are of sound mind until contrary evidence is provided by the party contesting the will. Examples of evidence that could convince a court that a testator lacked testamentary capacity include:
No single piece of evidence is considered conclusive in these types of cases. Instead, courts will consider a variety of factors and pieces of evidence before coming to a conclusion based on the totality of the circumstances. Furthermore, all evidence of a lack of testamentary capacity must relate to a time at or near the time when the will was executed. This means that just because a testator lacked capacity at the time of his or death does not mean that his or her will or trust will automatically be invalidated. As long as the testator had the mental capacity to create a will at the time it was witnessed and signed, a contest based on a lack of testamentary capacity will fail.
The Legal Representation You Deserve
If you believe that a loved one lacks the capacity to create a will or have concerns that your own relatives may attempt to have your will invalidated after your death, please call Orlowsky & Wilson, Ltd. Attorneys at Law at 847-325-5559 to schedule an initial consultation with a dedicated and compassionate Skokie contested estates attorney who can address your questions and concerns.