A testator in a will is 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.” 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?
- 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.
- 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, call the Law Offices of Albert Goodwin at (212) 233-1233 and we will be happy to discuss your estate plan with you.