Questioning the Testamentary Capacity of Someone to Make a Will

Questioning the validity of a will—such as whether someone actually executed the version of the will in question or whether they were of sound mind when doing so—is one component of estate litigation.

There are many reasons to question a will. Heirs may feel like the information in a will is not in keeping with any of the verbal wishes someone made known in their lifetime, for example, and that can certainly seem suspicious. Or, perhaps there are mitigating actions involving a will, such as the potential undue influence of one heir or a third party over the person in their final days.

However, proving that a will is not valid can be difficult. That’s especially true if you want to base your case on a lack of testamentary capacity.

What Is Testamentary Capacity?

Testamentary capacity refers to whether or not someone has the cognitive ability to create and execute a will. It is, for all intents and purposes, the “sound mind” part of what you might know as traditional will verbiage.

Testamentary capacity is a function of mental capacity. However, you don’t necessarily need full mental capacity in order to have testamentary capacity, as this is just one aspect of what mental health professionals mean when they say mental capacity.

What to Know About Questioning Testamentary Capacity

If someone is shown to have lacked testamentary capacity, their will may be deemed invalid by a probate court. Or, in a case where someone had a will and later created a new will, testamentary capacity may be used to determine which of those wills is valid and can be upheld.

New Jersey Law Automatically Assumes Testamentary Capacity

First. you should know that New Jersey law presumes testamentary capacity. That means that if a will has been created and properly executed, the law automatically assumes that the person who executed it had the mental capacity to do so. That puts the burden of proof on anyone claiming otherwise and not the other way around.

This is an important distinction because it means the legal deck, so to speak, is somewhat stacked against you if you want to claim a lack of testamentary capacity. You will have to come up with all the evidence and arguments to prove this claim. You can lose the argument simply by not making a strong enough case.

Capacity Matters at the Time a Will Was Executed

Testamentary capacity only matters at the time a will was executed, so you also have to demonstrate a very specific time frame during which the individual lacked this capacity.

For example, say someone talked for several years about how they wished to allocate their assets upon their death. Perhaps they even worked with an attorney to draft estate plans, and that work took several months. The testamentary capacity of the individual during all this time is irrelevant to whether the will is valid or not. It only matters if the person had the mental capacity to understand their intent and the basic functions of the will when they signed it.

The Standard Is Low, so It’s Hard to Prove Otherwise

New Jersey sets a low bar for testamentary capacity, making it fairly difficult to prove. For example, testamentary capacity does not require that the individual be able to read and understand the will itself. Many wills are filled with legal terms and language that some people may have a hard time following, and the law doesn’t require that the individual fully understand the legal document they sign.

Instead, for a will to be valid, the person signing it must be able to generally understand the provisions. For example, someone might understand that by signing a will, they are asking for their assets to be distributed among certain people in a specific manner. They do not need to be able to articulate the legal mechanisms in the will that support those wishes.

It Is Possible to Prove a Lack of Testamentary Capacity

Difficulties aside, it is possible to make a case that a will is invalid based on a lack of testamentary capacity. You need a preponderance of evidence that might include medical records, expert medical testimony, and testimony from people who were around the individual in question during their life and at the time the will was signed. This evidence must show that the person did not have the adequate memory and cognitive function when they signed the will to understand what outcomes the document would lead to.

If you believe that your loved one signed a will without understanding the outcomes—or you have any other reasons to doubt the legitimacy of a will, speaking to an estate litigation attorney may be a good step to take. Legal professionals can help you understand what your options are and whether you might have a good chance of overcoming the burden of proof requirements to demonstrate that a will is not valid.

The team at Bratton Estate & Elder Care Attorneys can help. Give us a call at 856-770-2744 to find out more about our services and to make an appointment to speak with one of our team members.