Testamentary Capacity

An Aging Population

With improving medical science, people are better able to live long and healthy lives than ever before.  However, a downside of this aging population is increased rates of dementia and other cognitive impairments.  Such conditions often impair various aspects of the person’s functioning; such as memory, judgement, and the ability to make complex decisions.  These factors can impact the person’s Testamentary Capacity in important ways.  They can affect the person’s ability to appreciate his or her financial assets and resources, as well as the ability to meaningfully engage in financial planning and develop an estate plan outlying how those assets are to be distributed at death.

Blended Families and Disputes

At the same time, society is experiencing increasingly complex family structures, particularly with the increasing occurrence of blended families.  Such blended families introduce new spouses, step-children, and step-grandchildren in to the family equation.  People often change or update their estate planning in consideration of these changes in family structure.

If a person changes a Will or Trust, relatives can be understandably upset if they feel unfairly “cut out” of the Will or Trust.  This situation can be particularly contentious in blended families where new spouses or step-children may be perceived as benefiting at the expense of biological children or long-standing family members.  This can lead to disputes and/or contentious litigation over whether the testator had the requisite capacity to make those changes.

Evaluating Testamentary Capacity

To avoid such litigation, an evaluation of Testamentary Capacity can be beneficial before having a person formally sign revised estate planning documents, such as an updated Trust or Will.  Such an evaluation should be considered any time someone makes a significant change to estate planning, particularly if that change disproportionately impacts one or more of the presumptive heirs.

Several criteria for determining Testamentary Capacity have been outlined by the courts, largely based upon the Banks v. Goodfellow (1870) ruling.  In turn, several psychological approaches for evaluating the factors associated with Testamentary Capacity have been developed.  In evaluating Testamentary Capacity, consideration is given to the delicate balance between protecting the personal autonomy of the testator and protecting the integrity of the estate plan.

Proactive Evaluations

As a precaution, an evaluation of Testamentary Capacity is advisable whenever an estate attorney or family member has reason to be concerned regarding a person’s testamentary capacity, or has reason to believe that a family member will posthumously challenge such capacity.

Disclaimer: The information on this page is not intended to serve as legal information or advice.  It is not a guarantee of how a specific evaluation will or should be conducted, as each evaluation is unique and requires an individual approach.