Also known as: testamentary capacities · capacity to make a will
Written by attorneys · grounded in primary & secondary sources — see below
The mental ability required of a testator to execute a valid will. The testator must understand in a general way the nature and extent of the property, the natural objects of bounty, and the disposition being made, and must be able to relate these elements to form an orderly plan. The testator must also have reached the age of majority.
Seventeen-year-old Tiana Tan signed a letter directing her structured annuity payments to her stepbrother after her death. Because Tiana had not reached the age of majority, the instrument failed to qualify as a valid will. The probate court treated the letter as void and distributed the assets under intestacy to her mother.
Tobias Thomas's relatives challenged his will on capacity grounds after he left the bulk of his estate to a longtime friend. The court admitted Tobias's earlier statements about his property and intended beneficiaries to evaluate whether he understood the disposition at execution. The statements helped establish that he possessed the required understanding.
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Tara Tran hired an attorney to draft her will but later suffered memory lapses that raised capacity questions. Her heirs sued the drafting attorney for failing to assess whether Tara understood her property and beneficiaries at execution. The court examined whether the attorney had a duty to confirm testamentary capacity before finalizing the document.
Tonya Takahashi's sibling contested her will in probate court, alleging memory confusion prevented understanding of the estate plan. The court first required the proponent to show due execution and then placed the burden on the contestant to prove lack of capacity. After weighing the evidence of confusion against counter-evidence of lucidity, the court determined the will was entitled to probate.
A person must be eighteen years of age or older. A purported will executed by a minor is void.
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The testator must understand the nature and extent of the property, the natural objects of bounty, and the disposition being made, and must relate these elements to form an orderly plan.
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Testamentary capacity requires only the ability to understand the will's elements at execution. Contractual capacity demands a higher level of comprehension of the transaction's nature and consequences.
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The contestant bears the burden of proving lack of capacity. The proponent must first establish due execution.
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…upon the competency of evidence offered to show that a will propounded for probate "was not the act of one possessed of testamentary capacity, or was obtained by such fraud and undue influence as to subvert the real intentions and will of the maker," Mr. Justice Colt said: "The declarations of the testator accompanying the act…