When is Someone Not Able to Make a Will?
It is not uncommon in will contests for one side of to argue that the testator did not have mental capacity to make the will. This argument is a tool made by many when the mental capabilities of the decedent are somewhat borderline and there is some evidence that they may not have either understood the will when making it or what the contents of the will were. Like nearly any type of will dispute, there is no simple test to show whether a testator lacked capacity to make a will. If you are planning your estate, the best way to avoid having such an argument be made after you pass, the best thing to do is to ensure your New York City estate attorney takes the proper steps to show your mental capacity at the time you sign.
Testamentary capacity, the legal term for whether or not a person has the mental capacity to enter a will, is the lowest standard when it comes to determining whether someone has the ability to sign a document. Testamentary capacity depends on whether someone had the mental capacity to sign the will at the time they signed, even if normally they would not be considered competent because of illness or dementia. This means that if someone is having a good day, they could be mentally competent enough to sign a will, even if normally they would not be competent to do other things, such as entering a contract.
There are three things that must be established to show if someone has testamentary capacity at the time the will was executed. First, the testator must understand that they are signing a will and have at least a basic understanding of what a will is and how it works. Second, the testator must have an understanding of what their property is and the extent of that property. This does not imply that the testator has to know each and every piece of property they own and the exact amount of their assets, just that he or she needs to have a general idea. Finally, the testator must have an idea of who their loved ones and relatives are, otherwise called “objects of their bounty”.
If you are signing a will, how can you make sure that the will will not be contested because of testamentary capacity? The answer is to gather a lot of evidence at the time of the signing, something that a New York City estate attorney can assist with. It is wise when this could be questioned, such as in the case of illness or possible dementia, to take steps to make sure that it is clear what your testamentary capacity is when you sign. The surest way is a two pronged approach of having a videographer film a doctor or your attorney asking you questions that establish testamentary capacity immediately before you execute the will. While such evidence cannot guarantee that there will be no will contest, it can provide relatively solid evidence that you met the legal guidelines when signing.
If you are looking into making a will or defending a will already made, and are looking for a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.