Capacity To Make A Will

Posted: Mar 27, 2019

By: Washington State Estate Planning and Probate Lawyer Andrew M. McKenzie

One of the requirements for making a valid will is that the testator have the legal capacity to do so.  Sometimes heirs or would-be-heirs under a will contend that the provisions thereof could not have been the testator’s true intentions, that the testator must not have been of sound mind, and that the will must therefore be unenforceable.  Beneficiaries are more likely to feel this way when their understanding of the strength of their relationship with the testator diverges significantly with their share of the estate’s assets to be distributed by the will as written.  Although it is true that a will is unenforceable if the testator lacked legal capacity to make it, lay persons frequently fail to understand how low the bar is for testamentary capacity.

Where a will, rational on its face, is shown to have been executed in legal form, the law presumes that the testator had testamentary capacity and that the will speaks his wishes.  A person has testamentary capacity if at the time they execute the will they (1) have sufficient mind and memory to understand the transaction, (2) comprehend generally the nature and extent of the property which constitutes their estate, and (3) recollect the objects of their bounty (i.e., the close relations who would be reasonably expected .  While direct evidence of an inability to recollect one’s property and close relations can nullify a will, general evidence of a poor memory will not.  Courts generally have also ignored a testator’s eccentricities in evaluating testamentary capacity (examples include belief that the testator’s food was being poisoned or her property stolen while she was in the hospital, or talking or laughing to one’s self, or objectionable or repulsive personal habits).  Even where a person’s mental state at times falls below the legal standard, the person may still have moments of lucidity where they are sufficiently aware that they have testamentary capacity.  Although these standards are highly deferential to the validity of wills, each situation is very factually specific, and is best handled by a trained legal professional.

At Beresford Booth, our lawyers have years of experience walking people through the process of making a will, as well as litigating will contests in court.  We would be pleased to assist you in making will, or in counseling you on issues surrounding a will’s validity.

Beresford Booth PLLC (425.776.4100),

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