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Preventing questions of testamentary capacity after you’re gone

On Behalf of | Jul 8, 2024 | Estate Planning

If you’re like a lot of people, you’ve postponed creating your estate plan until you’re well into your senior years. Maybe you have one in place, but you haven’t updated it in some time (or ever), and you want to make some significant changes.

You may have some concerns that one or more of your loved ones may dispute some of the terms of your will or other documents and use your age (and maybe the fact that you occasionally misplace the remote or call a grandchild by the wrong name) as evidence that you didn’t have the “testamentary capacity” to create or modify an estate plan. 

That may be a particular concern if you include provisions in your plan with which they may be unhappy. For example, have you decided that you’ve given your kids enough, and you’d rather your assets go to a local cat rescue?

How is testamentary capacity determined? 

Testamentary capacity isn’t necessarily dependent on age, physical ability or health. It’s generally defined to mean that someone understands what the document is that they’re putting in place (like a will) and the consequences of the provisions in it. For example:

  • Do they know what’s in their estate and its value as well as the value of the assets they’re leaving to each beneficiary?
  • Do they know who their heirs and other beneficiaries are and their relationship to them?
  • Do they know if there’s anyone they’re obligated to include (like a disabled adult child)?
  • Do they understand the potential consequences of the provisions?

It’s important to note that various documents have different standards for legal competency. However, they all come down to whether a person fully understands the terms of the document and the consequences of it. 

Do you need to prove your testamentary capacity?

One of the best ways to prevent challenges to your will based on testamentary capacity (or for any other reason) is to discuss the provisions with your loved ones – particularly if there’s anything they might find surprising or distressing. While this might be unpleasant, it gives you a chance to explain your reasoning and helps them understand that these are your wishes.

One of the many advantages of having experienced guidance in creating or modifying your plan that you’re demonstrating during the process that you understand the provisions you’re making and why. They can also recommend other steps it might help to take to prevent challenges to your estate plan after you’re gone.