What is Capacity for Making a Will?

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Most Americans do not have a last will and testament in place. In fact, not long ago AARP estimated that about 60% of adults do not ever make a will. For many people, the thought discussing their own death can keep them from wanting to review their estate plans. For others, however, there may be a bigger concern. For instance, some people may not be able to create a will due to a mental or cognitive impairment.

As we age, we all face some physical and health declines, but for seniors suffering from dementia, Alzheimer’s, or related conditions, it could be too late to make a will. For help, call Five Points Law Group today.

What is a Will?

First, it is important to understand what a will is designed to do. It is called a “will” because it is supposed to represent the will of the person making it. This person is commonly called the testator, as it is this person’s testament. Since it represents a person’s conscious choices (i.e. their will), the law does require the testator to have the requisite level of mental functioning to create such a document. This is called “testamentary capacity,” and it is a bit of a tricky subject.

What Level of Capacity is Needed to Make a Will?

Alabama law just requires that at the precise moment of signing, the testator must:

  • Be 18 or older
  • Understand that he or she is making a will
  • Understand the general effect that the will has
  • Understand the nature and extent of his or her property
  • Be aware of the “natural objects of her bounty” (in other words, the testator must know who close relatives are)
  • Must sign the will voluntarily

Keep in mind that a person can even have a diagnosis of mild dementia or Alzheimer’s and technically still be capable of making a will, so long as he or she was lucid and capable at the moment of execution. Therefore, other than these basic requirements, anyone can make a will, including foreign nationals, felons, and those who are incarcerated. Of course, the lower someone’s cognitive functioning is, the greater the risk of a successful will contest later, in the event heirs wished to dispute validity.

What if the Testator has Erratic or Strange Behavior?

For the most part, odd behavior is irrelevant. Even extremely unusual and unconventional conduct is not enough to make a person incapable of executing a will. There have been cases of disinherited family members attempting to contest a will for many odd reasons, such as:

  • A testator who gives all his money to charity
  • A testator who chooses to give everything to a young, second spouse
  • A testator who leaves money to a pet

However, it is important to note that so long as the individual knew relatives, knew what he or she was doing with the estate, and was capable of voluntarily signing the document, then the will is legally enforceable.

Levels of Testamentary Capacity may Vary by State or Country

Research from the United Kingdom suggests a heavy reliance on a physician’s assessment of the testator’s capacity. Similarly, it is wise to consult a physician if there is any doubt about one’s ability to execute a will. In situations in which one may suspect family members will fight over the outcome or where a particular individual may be disinherited, it is wise to obtain a physician’s letter or even mental health evaluation from a psychiatrist, which clearly outlines that the testator is competent to make such a decision.

Do Not Wait Until it is Too Late

While making a will does not require a significant level of mental functioning, it is possible for any of us to reach the point where we are simply unable to make one. In such a situation, rest assured that the State of Alabama has a statute in effect that will make the decisions for you. Do not let the state decide your final plans; contact Five Points Law Group today, and find out how simple and straightforward your estate plan can be.

Burton Dunn
Burton Dunn
Burton currently advises clients on their probate law, elder law and estate planning needs, including Social Security, Medicare, Medicaid, Veterans’ Affairs, estate and trust litigation matters, mental health issues, guardianships/conservatorships, and adoptions.

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