Also known as: testamenti factio · testamentary capacity · capacity to make a will
Written by attorneys · grounded in primary & secondary sources — see below
An ancient Roman law doctrine that encompassed three distinct capacities: the power to make a valid will, the power to receive property under a will, and the power to serve as a witness to a will.
Fiona Foster, age seventeen, hand-signed a letter directing her structured settlement annuity to her stepbrother. Because Fiona had not reached the age of majority, the letter lacked the capacity required for a valid will and was treated as void.
Fumiko Fujimoto executed a beneficiary designation shortly before her death. When the insurer challenged the designation on capacity grounds, the court examined whether she possessed the mental ability to understand the nature of the act at the time of execution.
Select any source to read its text and confirm it supports the definition.
Felix Franco left a holographic document disposing of his estate. His estranged sibling contested probate, presenting evidence of memory lapses and confusion in the months before death to show that Felix lacked the understanding necessary to form a valid testamentary plan.
Fernando Farrell retained counsel to draft a will that ultimately failed due to execution defects. The beneficiaries sued the drafting attorney, alleging that the attorney failed to ensure the testator possessed the requisite capacity and formalities at the time of execution.
The doctrine included the capacity to make a will, the capacity to receive property under a will, and the capacity to witness a will. Each aspect was necessary for full participation in testamentary matters.
A minor lacks the legal capacity to make a will. The Restatement treats any such instrument as void from the outset, providing a bright-line rule that protects minors and ensures certainty in probate.
No. The Restatement requires a formal emancipation decree. Living apart, managing finances, or making medical decisions does not remove the age-based incapacity rule.
Modern statutes and the Restatement continue the core principle that a person must possess the mental ability to understand property, beneficiaries, and disposition. The Roman doctrine supplied the historical foundation for these requirements.
…and we will so consider the point. The petition charged that testator was not of sound mind and did not have the mental capacity to make a will. The transcript contains more than 1,100 pages and there are a large number of exhibits. We will state the facts as briefly as possible and we think they will clearly support our conclusion…