Full question:
In preparing a will, how will an attorney determine if the the client has legal capacity? This question pertains to my 88 year old mother who suffers from senile dementia.
- Category: Wills and Estates
- Date:
- State: New Jersey
Answer:
Adults are generally presumed to have the capacity to create a will. However, if there are concerns about a person's mental capacity—such as due to senility, dementia, or other mental health issues—this can lead to legal challenges regarding the validity of the will.
In such cases, the burden of proof falls on those challenging the will to show that the testator (the person making the will) did not understand the consequences of their actions at the time the will was executed. To assess a client's testamentary capacity, an attorney may videotape the will execution. During this process, the attorney will ask the testator about their property, family, and the contents of the will.
For a will to be valid, the testator must have sufficient mental capacity to:
- Understand the nature of the act of making a will
- Recognize and recall their property
- Understand their relationships with those who may inherit or have claims on their estate
Ultimately, testamentary capacity is determined by whether the testator has the mental ability to comprehend these aspects at the time the will is made.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.