• Charlotte: +704.369.9977
  • Fort Mill: +803.594.4453
Consultation Request
Share

NC and SC Estate Planning and Elder Law Firm

Wednesday, July 18, 2018

Do You Have The Mental Capacity To Make A Will?

Do you ever walk into another room to get something, and suddenly forget what that something is? Do you get confused and irritable when you are tired? Did you understand all of the fine print in the last contract you signed? Depending on how you answer these questions, someone might challenge your mental capacity to make an estate plan.

At its heart, an estate plan is a bunch of contracts. And one of the fundamental rules of contracts is that the parties entering into them must have the mental capacity to understand what they are agreeing to. People over the age of 18 are generally assumed to be of full mental capacity unless it is obvious they are not. However, it is no secret that as we age our minds start to fail us. Eventually, one’s ability to enter into contracts, and therefore one’s ability to execute an estate plan, may disappear.

Determining when someone is no longer of sound enough mind to execute a will or other estate planning documents can be difficult. Both legally and emotionally.

From a legal perspective, a will is only valid if the signer had “testamentary capacity.” The court considers four factors in evaluating competency:

  • Whether the signer comprehends the natural objects of his or her bounty;

  • Understands the kind, nature and extent of his or her property;

  • Knows the manner in which he or she desires his or her act to take effect; and

  • Realizes the effect his act will have upon his estate.

Courts assume anyone who has created a will passes this test unless someone who objects to the will can prove otherwise. This means that the ability to create an estate plan can’t be taken away just because the signer has some sort of disease or mental illness. As long as he or she has periods of lucidity, he or she may still be competent to sign a will.

If someone objects to a will and questions the testamentary capacity of its creator, they must have specific evidence that at the time the will was signed the signer did not understand what he or she was doing. General evidence that the signer’s health is deteriorating or that he or she is sometimes confused is not enough.

Our firm takes does all it can to protect our estate planning clients who are worried their will may be contested. We have a conversation with will-signers where we go over each of the factors in the test the court applies. This way we know they have considered them and understand them and we can testify to that fact in court.

Nobody should be afraid that it is too late for them to create or modify their estate plan just because they are getting a little forgetful. Everyone has the right to have their last wishes legally documented. We believe this, and we work hard to make it happen when it is in our power to do so.


Archived Posts

2019
2018
December
November
October
September
August
July
June
May
April
March
February
January
2017
December
November
October
September
August
July
June
May
April
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013


Monk Law Firm, PLLC assists clients throughout Charlotte, Rock Hill, Fort Mill and the surrounding areas.



© 2019 Monk Law Firm, PLLC | Disclaimer
1701 First Baxter Crossing, Suite 101, Fort Mill, SC 29708
| Phone: 803-594-4453
13315 Carowinds Blvd., Suite Q, Charlotte, NC 28273
| Phone: 704-369-9977

Estate Planning | Elder Law / Medicaid Planning | Guardianships | Probate / Estate Administration | Special Needs Planning | Veterans Benefits | Business Law | Business Succession Planning

Law Firm Website Design by
Zola Creative