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Invalidating a Will Because of a Lack of Testamentary Capacity

elder_wheelchairA testator (i.e., someone who executes a will) must have a certain level of mental ability at the time he executes a last will and testament. The level of mental ability required of a testator to make a valid will is called testamentary capacity. In order to have the testamentary capacity to make a will, a testator must have a decided and rational desire as to the disposition of his property upon his death. In other words, the testator must:

  • Understand that the will has the effect of distributing his property at the time of his death;
  • Be capable of remembering generally what property is subject to distribution by will;
  • Be capable of remembering those persons related to him; and
  • Be capable of expressing an intelligent scheme of distribution.

Challenging a Will for Lack of Testamentary Capacity

Once a will is offered for probate, filing a challenge (a.k.a. caveat) to the will on the ground that the testator lacked testamentary capacity when the will was executed is one way in which the will can be invalidated. Although the level of mental ability required of a testator is not difficult for most people, wills are susceptible to attack as a result of lack of testamentary capacity when, at the time the will was executed, the testator suffered from a mental illness or dementia, was under the influence of medication, alcohol, or illegal drugs that impair memory or cognitive ability, or experienced serious brain injury. All humans are vulnerable to suffering from such infirmities at any point in their lives. Consequently, it is wise not to put off estate planning until it is too late.

Proving Lack of Testamentary Capacity

Caveats on the ground that the testator lacked the capacity to execute a will can be supported by evidence of the testator’s state of mind at the time of the will’s execution and during a reasonable time before and after that event. The testator’s state of mind can be proven with medical records, the testimony of treating psychiatrists, physicians, and nurses, the testimony of those who observed the testator, evidence of the testator’s statements, and other relevant evidence. Since the signing of a will in the State of Georgia must be witnessed by two or more people, at least two people have the opportunity to observe the testator when the will is executed.

Fighting a Claim of Lack of Testamentary Capacity

Nonetheless, successful caveats as a result of lack of testamentary capacity are rare. Old age, weakness of intellect, or the eccentricities of the testator do not usually constitute incapacity to execute a will. Moreover, wills that are drafted by attorneys are much less likely to be invalidated. A competent attorney communicates with and observes the testator in preparation of the will and should not proceed with the execution of the will if it is observed that the testator lacks testamentary capacity.

Even if the evidence shows that a testator lacked testamentary capacity before and after the will’s execution, the will might still be valid if the testator had the required mental ability at the time of the will’s execution (a.k.a. a moment of lucidity). For example, an insane person might have the ability to make a will during a lucid interval. A person who is heavily medicated might have the ability to make a will during a period of abstinence from medications.

Knowledgeable Estate and Probate Litigation Attorneys

It is a good idea to seek advice from a knowledgeable estate litigation attorney if you suspect that a family member who signed a will did not have testamentary capacity or if you are a beneficiary facing a challenge to your rights under a will. Contact the estate lawyers of Schklar & Heim, LLC at (404) 888-0100.