Who is a Testator in a Will – Frequently Asked Questions

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