What is a Testator: Definition of Testator

Definition of testator: (noun)/ A person who makes a will or has made or left a will. A will, or last will and testament, is a written document detailing the testator’s final wishes on how he wants to dispose his property after his death.

What are the requirements for being a testator?

To be a testator and make a valid will, you have to meet certain legal requirements.

For example, in the state of New York, every person eighteen years of age or over, of a 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.

Thus, you must have the “testamentary capacity” to be a testator and make a valid will, that is:

• You must be at least 18 years old; and
• You must be of “sound mind and memory.”

How do you know if you have the testamentary capacity to make a will?

• You must be aware of your actions at the time of making the will.
• You must understand that you are creating and signing a will.
• You must know the nature and extent of the property you own.
• You must have the intention to create a will.
• You must understand that by creating a will, you are leaving your property to the persons you named in the Will after your death.

What is “sound mind and memory” for a testator?

“Sound mind and memory” means that the testator knows what he is doing when making a will, what he owns, and the meaning and effect of the will. NY EPTL § 3-1.1.

Even people suffering from mental illness or cognitive defects can be considered of “sound mind.” It all depends on the law’s definition of what is a testator in a will. And even testators who usually lack capacity may be proven to have legal capacity to make a will during a “lucid interval.”

Do you as a testator have a sound mind and memory to make a valid will?

Yes, if:

• You are of old age but you are still aware what your property is and what you want to leave to each person after you die.
• You are forgetful but you have a clear memory of your family members and your property.
• You are physically ill or disable but not impacted by mental disorder.
• You have a mental illness; however, you wrote your will during your lucid or sane moment.

No, if:

• You are experiencing a mental illness like dementia or Alzheimer’s disease which makes you incapable of understanding the consequences of writing a will.
• You are delusional or unable to think reasonably enough to prepare a will.
• You are being forced by someone to make a will.
• You are under duress, undue influence, or controlled by someone to make a will in his or her favor. The presence of undue influence, threat of force, or duress will invalidate a will.
• You have total failure of memory or your failure of memory extends to your family or property.
• You are under the influence of drugs that deprives you of your reasoning.

If you would like to be a testator and make your own will or would like to discuss your own personal situation, or would like to know more about the definition of testator, call the Law Offices of Albert Goodwin at 212-233-1233 or send us an email at [email protected] and we will be happy to discuss your estate plan with you.

The Legal Standard for Testamentary Capacity

The standard for testamentary capacity in New York is relatively low — lower than the standard for many other legal acts. The classic formulation requires the testator to understand:

1. The nature and consequences of making a will.
2. The nature and extent of their property.
3. The natural objects of their bounty — the family members who would naturally be expected to inherit.
4. The disposition the will makes — who gets what.

The testator does not need to remember every detail of their assets or family. The testator does not need to make decisions that would seem reasonable to others. The testator only needs the basic understanding listed above. People with significant cognitive impairment can still meet this standard, particularly during lucid intervals.

Mental Illness and Testamentary Capacity

Mental illness does not automatically defeat testamentary capacity. The key question is whether the illness affected the specific understanding required at the specific moment of the will signing. Some specific situations:

Mild to moderate dementia. Many people with early-stage dementia retain testamentary capacity. They may have memory problems for recent events but retain understanding of their family, their property, and their wishes. A will signed by such a person can be valid if the specific moment of signing met the capacity standard.

Severe dementia. As dementia progresses, capacity becomes more questionable. A person with severe dementia who cannot identify their children, who does not know what property they own, or who cannot understand the concept of a will lacks capacity. The exact line varies with the individual.

Schizophrenia and other psychotic disorders. A person with schizophrenia may have capacity during periods when symptoms are controlled. The challenge is showing that the will was signed during a competent period and that the specific understanding existed.

Depression. Depression itself rarely affects testamentary capacity. A person can be very depressed and still understand the requirements of making a will.

Substance abuse. Active intoxication can defeat capacity at the moment of signing. A will signed while the testator was drunk or high may be invalid even if the testator generally had capacity at other times.

The Lucid Interval Concept

A testator who generally lacks capacity may have lucid intervals during which capacity is present. Lucid intervals are documented in case law for various conditions:

• Early or moderate dementia patients may have hours or days of relatively clear cognition.
• Patients recovering from delirium may be lucid before the delirium recurs.
• 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 lacks capacity. Proving the lucid interval is the burden of the will's proponent. Medical records, physician testimony, lay witness testimony about the testator's appearance and behavior, and contemporaneous documents are all relevant evidence.

Documenting Capacity at the Signing

For testators where capacity may be questioned, careful documentation at the time of signing is essential. Best practices include:

• Multiple consultations. The drafting attorney meets with the testator multiple times over a period of weeks or months. Each meeting is documented in the attorney's notes.
• Contemporaneous medical evaluation. A current letter from the testator's physician confirming testamentary capacity, ideally based on a specific examination near the signing date.
• Capacity-focused questioning at signing. The attorney asks the testator specific questions about the property, the family, and the will's terms, with the answers documented.
• Independent witnesses. Witnesses unconnected to the favored beneficiaries who can describe the testator's appearance and behavior at the signing.
• Video recording. For high-risk cases, video recording of the execution ceremony preserves the visual evidence of the testator's apparent competence.
• Detailed self-proving affidavit. The affidavit signed by the witnesses describes the formalities observed and the testator's appearance and conduct.

Undue Influence: A Separate Concern

Testamentary capacity is one ground for challenging a will. Undue influence is a separate ground that does not necessarily involve capacity. Undue influence occurs when a person with confidential access to the testator (a caregiver, a close family member, a new acquaintance) exerts pressure that overcomes the testator's free will. The testator may have full capacity but still be the victim of undue influence.

The two grounds often appear together in will contests. The contestants argue that the testator lacked capacity, was unduly influenced, or both. The proponent must defend on both grounds.

The Burden of Proof on Capacity

In New York, the proponent of the will bears the initial burden of proving that the testator had testamentary capacity. This burden is satisfied by the will witnesses' testimony (or the self-proving affidavit) attesting that the testator appeared competent at the signing.

Once this prima facie showing is made, the burden shifts to the contestant to show by a preponderance of the evidence that the testator actually lacked capacity. The contestant typically relies on medical records, lay witness testimony, and other evidence to overcome the prima facie case.