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 presumed to have capacity to make a will. Litigation about testamentary capacity usually involves charges that the testator, because of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. The court will require those who challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.
When a person's testamentary capacity might be called into question, a lawyer will often arrange for a will execution to be video taped. While taping, they ask the testator about his property and about his family, and review the contents of the testator's will. Testators must have sufficient mental capacity to be able to understand the nature of the testamentary act, understand and recollect the nature and situation of their property, or remember and understand their relations to living descendants, spouse, and parents, and others whose interests are affected by the will. Testamentary capacity involves the question of whether, at the time the will is made, the testator ‘has sufficient mental capacity to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.
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.
