Understanding Testamentary Capacity

testamentary capacity, Naperville estate planning attorneyIn my practice as an estate planning lawyer, I have helped hundreds of clients draft wills that help provide long-term financial security for their family members and loved ones. I have also assisted a number of beneficiaries and others in contesting wills that they believed did not truly reflect the wishes of the individuals who created them. There are several grounds on which a will contest may be filed in Illinois, and among the most common is the alleged lack of testamentary capacity by a will’s creator. It is important to understand how the law defines testamentary capacity before filing such an action.

Testamentary Capacity Defined

According to the Illinois Probate Act of 1975, a person has the power to draft and execute a will as long as he or she is at least 18 years old “and is of sound mind and memory.” Of course, the important phrase in that excerpt is “sound mind and memory.” What constitutes sound mind and memory for the purposes of creating a valid will? An Illinois appeals court answered that question in 1977 in a case entitled Beyers v. Billingsley and indicated that three elements must be considered in determining a person’s testamentary capacity.

According to the court’s ruling in Beyers, a person is capable of drafting a will if he or she:

  • Knows and remembers his or her children, grandchildren, and other family members;
  • Understands the nature, character, and relative value of his or her property; and
  • Can develop a plan for disposing of his or her property in his or her mind.

The law presumes that person possesses testamentary capacity unless it can be shown otherwise.

Cognitive Impairments and Testamentary Capacity

Countless individuals suffer from cognitive and learning impairments that can affect the quality of their lives. Some such issued develop early in a person’s life while others do not manifest until the person is much older. It is important to keep in mind that being diagnosed with an impairment—such as autism in a child or early stages of dementia in a senior citizen—does not automatically mean that the person lacks testamentary capacity. The level of impairment and the complexity of the will’s provisions are both important considerations in making such a determination.

The presumption of testamentary capacity shifts, however, if a person is deemed by the court to be disabled and a guardian is appointed to manage the person’s affairs. Once a guardian is appointed (along with the court’s finding that the subject lacks testamentary capacity), any will drafted after that date is presumed to be void. The presumption can be overcome by clear and convincing evidence of testamentary capacity at the time that the will was executed, but doing so is extremely difficult.

Call Us Today

If you have questions about your will or that of a loved one, contact an experienced Naperville estate planning lawyer to get the answers you need. Call The Gierach Law Firm at 630-756-1160 for a confidential consultation today.



Illinois Probate Act of 1975

Illinois Pattern Jury Instructions