Understanding Testamentary Capacity

  • Robert S. Thomas,
  •   Probate
  •   Comments Off on Understanding Testamentary Capacity

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Estate planning is meant to provide certainty and clarity to a person’s last wishes, so that they can rest assured that their loved ones are provided for. A will is the primary mechanism for most people to explicitly establish how their property will be divided upon their death. Unfortunately, there are times that people have questions about a will.

One example is when people believe that a caretaker or somebody with ill-intent has influenced the testator into changing a will. Another example is when a testator was aging at the time the will was executed and there are questions about whether he or she had the mental capacity to create the document. As a result probate courts sometimes see challenges to the validity of a will by interested parties. One basis of such a challenge is the testator’s “testamentary capacity.”

What is Testamentary Capacity?

The Illinois Probate Act provides that “Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by will the real and personal estate which he has at the time of his death.” The Testamentary capacity is a person’s “sound mind and memory” to effectuate a will.

In Illinois, there is a legal presumption that when a will is properly executed and witnessed, the testator had testamentary capacity to execute the document. In order to overcome this presumption, a party who seeks to contest the will has the burden of proof to demonstrate that the testator lacked this capacity.

What Do Courts Look At?

A court’s review of a challenge to testamentary capacity focuses on the time of the execution of the will. There is no specific mental or medical diagnosis that proves a lack of capacity. Instead, the courts look to the answers of the following questions:

  • Did the testator have the capacity to know what property and how much property he or she owned at the time of execution? This is referred to as the testator’s “bounty.”
  • Did the testator have the capacity to know the “natural objects” of his or her bounty? In other words, was the testator aware of relatives and descendants who stood to inherit from the estate?
  • Did the testator have the capacity to understand what a will is?
  • Did the testator have the capacity to have a plan for how his or her property would be distributed?

Contact an Experienced Attorney for Assistance

If you are considering challenging the validity of a will, or you are the executor of a will at issue, you should contact a probate attorney for assistance. Probate court proceedings, including will challenges, are subject to rules of evidence, rules of procedure, and probate statutes. As an experienced probate attorney, I can help you. Contact The Law Offices of Robert S. Thomas at 847-392-5893 to schedule an appointment or visit our website today.

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