Testamentary Capacity

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Have you been considering a testamentary capacity for your estate planning? The Law Office of Paul Black can help. Get in touch with us to get assistance today

Author: Paul Black

Paul’s experience as the son of two parents with big health challenges is what led him to the work he does today and gives him first-hand knowledge of the challenges that many caregivers and family members face. After graduation from GSU Law, Paul was chosen from dozens of applicants nationwide as one of three 2010-2011 Borchard Foundation Law & Aging Fellows. Paul has been named as  a SuperLawyers “Rising Star” in the area of Estate Planning and as a member of Georgia’s “Legal Elite” by Georgia Trend magazine. Published on: October 03, 2023.

Legal Standards for Testamentary Capacity

Legal Standards for Testamentary Capacity sect

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If you’re considering making a valid will, you’ve probably heard of the term testamentary capacity. Testamentary capacity is an important part of making a valid will in Georgia. It is a legal term that refers to the state of mind of the person writing the will and their ability to understand the implications and consequences of their will. It is the most important legal requirement when making a will.

The person who is making the will must be of sound mind, which means that they must be able to understand the concept of ownership, the nature and value of their property, and the effect of their will on their heirs. They must also be able to understand and appreciate the fact that they are making a will.

In this guide, you will learn about testamentary capacity when writing wills. For help with your estate plan, contact The Law Office of Paul Black.

What Is Testamentary Capacity?

Under the Georgia Code, testators have testamentary capacity if they have “a decided and rational desire as to the disposition of property.”

The legal term ‘testator’ refers to the person who makes the will. Sometimes, the legal term is ‘testatrix,’ which refers to a female testator.

The requirement of testamentary capacity must be met for a will to be deemed valid. If the testator lacks testamentary capacity, an action might be brought in probate court to contest the will.

It is then up to the probate court to determine whether the will is valid. In the event that the will is invalidated, estate distribution is in accordance with Georgia law. Suppose, for example, the heirs include minors. The probate court may order a guardianship or conservatorship. Georgia law applies by default.

How Do You Prove Testamentary Capacity?

Any person is presumed to be able to execute a will unless its validity is challenged. The Georgia Code also states that the following is inconsistent with a person’s ability to make a will:

  • Advanced age

  • Weak intellect

  • Being eccentric in habits or thoughts

Several court cases have addressed the question of testamentary capacity. In these cases, the courts examined factors such as an individual’s age, physical health, and mental capacity to determine whether or not they were mentally capable of making a will. Courts have also considered whether an individual acted rationally and without undue influence when making the will.

Banks v Goodfellow established the legal test for determining testamentary capacity in 1870. Basically, the case lays down that a testator has testamentary capacity if they:

  • Has a thorough understanding of how to make a valid will and the effects of their decisions.

  • A testator must understand the scope of assets they are disposing of. It is not necessary for them to know the exact value of their assets, but they must be aware of how much wealth they possess.

  • Have the ability to give consideration to any claims made against their estate. This means that testators must be aware of who might inherit their estate first, such as their spouse, if they are married.

  • Individuals’ sense of right and wrong cannot be altered by mental disorders or irrational delusions preventing them from distributing their assets using their natural skills. A person who is insane is incapable of understanding the nature and consequences of their act in making the contract fully and clearly. However, a testator’s mental capacity is determined by his or her mental condition at the time the will was made.

Demonstrating Testamentary Incapacity

Demonstrating Testamentary Incapacity

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A common ground for challenging a will’s validity is a lack of testamentary capacity. The legal challenge usually happens after the person’s death. It is usually brought by the person who gets an unfavorable share in the testator’s property.

The capacity of a testator to make a valid will is based on their mental ability to understand the nature and consequences of their actions at the time of writing the will. As such, someone with a mental illness can make a will when lucid.

However, if the testator is suffering from an impaired mental capacity, they may lack the capacity to make a will. In these cases, a will made on their behalf may not be valid.

Mental capacity is often challenged due to the testator’s mental state, which could be affected by:

  • Senility

  • Serious illness

  • Loss of memory due to age, such as Alzheimer’s disease

  • Insanity

  • Feeblemindedness

  • Infirmity

Claims that a person lacks capacity must be proven by clear and convincing evidence that the testator was of unsound mind. This mental incapacity has rendered the person incapable of understanding and making decisions about his estate. His mental illness may make him vulnerable to undue influence. An assessment of testamentary incapacity is required to invalidate a will.

What Happens When Testamentary Capacity Is Contested?

Evidence will be necessary to prove the testator’s capacity in order to prove testamentary incapacity. An individual challenging the will has the burden of proving that the testator lacked testamentary capacity at the time of writing the will. The burden of proof is high and can be difficult to prove, which is why it is essential to seek legal advice from a skilled lawyer.

It is possible to demonstrate a lack of testamentary capacity in the following ways:

  • The medical records of the patient and the testimony of the treating physicians

  • The testimony of the testator’s friends and family members, particularly those who spent time with the testator around the time that the will was drafted. The testimony of those without vested interests in the outcome of the case might carry more weight.

  • The drafting attorney’s testimony. The attorney’s testimony can provide insight into the testator’s state of mind at the time the will was drafted, as well as any potential undue influence on the testator. The attorney can also provide information about any changes made to the original will or any discrepancies in the will.

An estate planning attorney from the Law Office of Paul Black can supervise the will-writing process to avoid future issues. Call us to schedule an appointment.

What Happens When Testamentary Capacity Is Contested

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The Law Office of Paul Black Can Help With Your Estate Planning Needs in Georgia.

The Law Office of Paul Black Can Help With Your Estate Planning Needs in Georgia

Talk with a Probate Court Expert Today.

The Law Office of Paul Black provides advice and guidance on the proper steps to create a valid will, including advice on tax implications. We can help you ensure that your will meets all legal requirements.

We can also provide legal advice on inheritance disputes and other legal issues that may arise in the future. We can also assist you with drafting powers of attorney, trusts, and other estate planning documents. Our lawyers are available to provide advice on any estate planning matter. We are here to help you protect your loved ones and secure your legacy. Call us now!

Frequently Asked Questions

Does a Testator With Dementia Have Testamentary Capacity?

Generally, yes. A person with dementia may experience lucid intervals from time to time. During these lucid intervals, a person may validly make a will. However, in Mosley v Warnock, the court held that the evidence proved the decedent suffered dementia when she executed the will.

Can a Mentally Ill Person Make a Valid Will?

Yes. The law provides that a mentally ill person cannot make a will except during a lucid interval.

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