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

NC and SC Estate Planning and Elder Law Firm

Thursday, October 29, 2020

How Testamentary Capacity Is Determined

Testamentary capacity is essential to making a valid will. In fact, testamentary capacity refers to the mental capability of a person to establish a formal will. For a person drafting a will, referred to as the “testator,” having testamentary capacity is a requirement for the will to be recognized as valid. Without testamentary capacity, the will falls to any challenger of its validity. What, however, does testamentary capacity actually mean? We go into greater detail about that right here.

How Testamentary Capacity is Determined

In order for a person to possess testamentary capacity, a few requirements must be met. The person must understand the nature and extent of his or her property. Furthermore, the testator must understand the natural objects of his or her “bounty.” In other words, the testator must be aware of his or her closest surviving relatives. The testator must understand that he or she is making a will and also understand the effects of the directions contained in the will. So, the testator, to have testamentary capacity, must understand the breadth of his or her property, understand who the property is being left to, understand which closest relative, if any, may be left out from getting that property, and that these directions are being memorialized in a legal document known as a “will.”

In order to best avoid any potential problems or issues in regards to testamentary capacity, it is in almost everyone’s best interest to establish a will as soon as possible. Having a will in place is not just for the elderly or infirm. Everyone should put estate plans in place sooner rather than later.

Should testamentary capacity in a testator be uncertain or questionable, it may be best to seek an evaluation from the testator’s treating physician or geriatrician. The medical report generated may be necessary later on to help establish the fact that the testator did actually have testamentary capacity at the time the will was established.

Having a will contested after the testator passes can throw a family into further emotional turmoil. They are all still dealing with the loss of a loved one and now they will face a likely very heated and emotional legal battle to determine whether the will is valid. Should a person seek to contest a will, he or she carries the burden of proving the will is invalid through presenting clear and convincing evidence of the testator’s lack of testamentary capacity.

There are several ways a will contest may go. The court may declare the will to be valid and it will stand as is. The court may declare the will to be invalid and things will proceed as if there was no will in place at all. This means that the intestate laws of the state will dictate how the testator’s estate is distributed. In the alternative, however, the court may order the contested will to be invalid and instead order the use of a previous version of the will that has been found to be valid to be used in its place.

Estate Planning Attorney

The best way to avoid a future will contest may be to put your will in place sooner rather than later when there is minimal likelihood that it will be challenged based on testamentary capacity. Take control of your future and that of your families by putting a comprehensive estate plan in place. Contact Monk Law Firm today.


Archived Posts

2021
2020
December
November
October
September
August
July
June
May
April
March
February
January
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.



© 2021 Monk Law Firm, PLLC | Disclaimer
1701 First Baxter Crossing, Suite 101, Fort Mill, SC 29708
| Phone: 803-594-4453
6000 Fairview Road, Suite 1200, Charlotte, NC 28210
| Phone: 704-369-9977

Estate Planning | Elder Law / Medicaid Planning | Guardianships | Probate / Estate Administration | Special Needs Planning | Veterans Benefits | Business Law | Business Succession Planning | Florida Veteran's Aid and Attendance

Law Firm Website Design by
Zola Creative