Understanding Testamentary Capacity in the Context of Estate Planning

naperville estate planning lawyerAnyone who signs a legal contract must do so of their own free will. An individual cannot be forced, manipulated, or tricked into signing a contract. These rules also apply to estate planning documents such as wills and trusts.

Testamentary capacity refers to a person’s ability to create and agree to a valid will. An individual must be of sound mind to create a will that holds up against a will contest. Whether you are planning to create your will or you have concerns about the validity of a deceased loved one’s will, it is crucial that you understand the concept of testamentary capacity.

When is Someone Mentally Fit Enough to Create a Will?

When an individual suffers from dementia or Alzheimer’s disease, their cognitive capacity can vary significantly from day to day. It is not always easy to determine whether a person has the capacity to fully understand what they are agreeing to. Unfortunately, questions about testamentary capacity can lead to bitter legal disputes. This is why it is so important to work with an attorney if you have an illness that affects cognition, are of advanced age, or worry that your will may be contested in the future.

In Illinois, testamentary capacity is the “mental ability to know and remember who are the natural objects of [one’s] bounty, to comprehend the kind and character of [one’s] property, and to make disposition of the property according to some plan formed in [one’s] mind.”

In other words, the testator must be able to understand the extent and financial value of the assets contained in the will. They must also understand how their assets will be distributed to beneficiaries. The testator must be able to identify the individuals named as beneficiaries.

How is Testamentary Capacity Proven?

If a will is contested on the basis of lack of testamentary capacity, the person contesting the will has the burden of proof. Courts assume that testators have testamentary capacity unless proven otherwise by clear and convincing evidence.

Medical records, videos of the will execution, emails and text messages, and expert testimony from medical professionals or forensic psychologists may be used as evidence to prove or disprove a testator’s testamentary capacity.

Our Naperville Estate Planning Lawyers Can Help

If you are planning to draft a will or modify existing estate plans, our Naperville estate planning attorneys can help you minimize the chances of a successful will contest in the future. We also provide skilled legal representation to beneficiaries who are concerned about the management or distribution of a deceased loved one’s assets or the validity of a deceased loved one’s will. Call our office today at 630-756-1160 to set up a private consultation to discuss your needs.



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Please note: These blogs have been created over a period of time and laws and information can change. For the most current information on a topic you are interested in please seek proper legal counsel.

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