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What is a Testator: Definition of Testator
A testator is a person who makes a will, or who has made or left one. A will, or last will and testament, is a written document setting out the testator’s final wishes about how their property is to be disposed of after death.
Who can be a testator in New York?
In New York, every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property (NY EPTL § 3-1.1). So there are two requirements: you must be at least 18 years old, and you must have “testamentary capacity”, meaning you are of sound mind and memory.
What “sound mind and memory” means
Sound mind and memory means that the testator knows what they are doing when making the will, knows what they own, and understands the meaning and effect of the will. The standard in New York is relatively low, lower than the standard for many other legal acts. The classic formulation asks whether the testator understands four things: the nature and consequences of making a will; the nature and extent of their property; the natural objects of their bounty, meaning the family members who would naturally be expected to inherit; and the disposition the will makes, that is, who gets what.
The testator does not need to remember every detail of their assets or family, and does not need to make decisions that would seem reasonable to others. Only the basic understanding just described is required. For that reason, people with significant cognitive impairment can still meet the standard, particularly during lucid intervals, and even people with a mental illness can be of sound mind for this purpose.
Situations that usually do, and do not, satisfy the standard
The following table summarizes how common situations tend to be treated. Each case turns on the testator’s actual understanding at the moment of signing.
| Situation | Capacity to make a will? |
|---|---|
| Old age, but still aware of what you own and whom you want to leave it to | Yes |
| Forgetful, but with a clear memory of your family members and your property | Yes |
| Physically ill or disabled, with no mental disorder | Yes |
| A mental illness, but the will was signed during a lucid interval | Yes |
| Dementia or Alzheimer’s disease that leaves you unable to understand the consequences of making a will | No |
| Delusional, or unable to reason well enough to prepare a will | No |
| Total failure of memory, or a failure of memory that extends to your family or property | No |
| Under the influence of drugs that deprive you of your reasoning | No |
| Forced, under duress, or subject to undue influence by someone acting in their own favor | The will is invalid, whatever the testator’s capacity |
Mental illness and testamentary capacity
Mental illness does not automatically defeat capacity. The question is whether the illness affected the specific understanding required at the specific moment of signing.
Many people with early-stage dementia retain capacity. They may have trouble with recent events but still understand their family, their property and their wishes, and a will signed at a moment that met the standard is valid. As dementia progresses, capacity becomes more questionable: a person who cannot identify their children, does not know what property they own, or cannot grasp the concept of a will lacks capacity. Where the line falls varies with the individual.
A person with schizophrenia or another psychotic disorder may have capacity during periods when symptoms are controlled; the challenge is showing that the will was signed during such a period. Depression itself rarely affects capacity, since a person can be very depressed and still understand what making a will involves. Active intoxication is different: a will signed while the testator was drunk or high may be invalid even though the testator generally had capacity at other times.
The lucid interval
A testator who generally lacks capacity may have lucid intervals during which capacity is present. The case law documents them in several conditions: early or moderate dementia patients may have hours or days of relatively clear cognition, patients recovering from delirium may be lucid before it recurs, and people with severe but episodic mental illness may have periods of clarity between episodes.
A will signed during a lucid interval can be valid even though the testator generally lacked capacity. Proving the lucid interval is the burden of the will’s proponent. Medical records, physician testimony, lay witnesses who saw how the testator looked and behaved, and contemporaneous documents are all relevant evidence.
Documenting capacity at the signing
Where capacity may later be questioned, careful documentation at the time of signing is what wins or loses the eventual contest. These are the safeguards that experienced drafting attorneys use.
| Safeguard | What it establishes |
|---|---|
| Multiple consultations over weeks or months, each documented in the attorney’s notes | That the testator’s wishes were consistent and their understanding stable over time |
| A current letter from the testator’s physician, ideally based on an examination near the signing date | Contemporaneous medical confirmation of testamentary capacity |
| Capacity-focused questions at the signing about the property, the family and the will’s terms, with the answers recorded | That the four elements of the standard were present at the moment of execution |
| Witnesses unconnected to the favored beneficiaries | Credible, disinterested accounts of the testator’s appearance and behavior |
| Video recording of the execution ceremony, in high-risk cases | Visual evidence of the testator’s apparent competence |
| A detailed self-proving affidavit signed by the witnesses | A sworn record of the formalities observed and the testator’s conduct |
Undue influence is a separate question
Lack of capacity is one ground for challenging a will. Undue influence is a separate ground that does not depend on capacity. It occurs when a person with confidential access to the testator, such as a caregiver, a close family member or a new acquaintance, exerts pressure that overcomes the testator’s free will. A testator can have full capacity and still be the victim of undue influence. The two grounds often appear together in will contests: the contestant argues that the testator lacked capacity, was unduly influenced, or both, and the proponent must defend on both fronts. We discuss the second ground on our undue influence page.
Who has to prove capacity
In New York, the proponent of the will bears the initial burden of proving that the testator had testamentary capacity. That burden is met by the testimony of the attesting witnesses, or by the self-proving affidavit, that the testator appeared competent at the signing. Once that prima facie showing is made, the burden of going forward shifts to the contestant, who must come forward with evidence that the testator actually lacked capacity, typically medical records, lay witness testimony and other proof; the ultimate burden of proving capacity remains with the proponent.
If you would like to make your own will, or want to discuss whether a particular will was made by someone with capacity, call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
