What are the Mental Requirements for Making a Will?

A concerned daughter contacted me. Her mother’s Will was outdated, and needed to be updated. She has been wanting to make changes for years, but getting this done now seems more pressing. Her mother is experiencing health issues, and would likely be diagnosed with Alzheimer’s disease soon.

A distraught wife contacted me. Her husband has diagnosed with cancer last year. They were so focused on his health and treatment that they didn’t take the time to plan their estate. Unfortunately, cancer is winning the battle, and he is now in hospice receiving palliative care.

Both asked whether it was too late for their loved ones to sign a Will.

One important requirement of a valid Will is that the person making the Will has testamentary capacity.

A person has testamentary capacity if, at the time the Will is signed, the person making the Will has the ability to:

  • understand the he or she is making a Will
  • understand the effect of his act in making the will;
  • understand the general nature and extent of his property;
  • know his next of kin and natural objects of his bounty; and
  • “collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive, at least, their obvious relation to each other, and be able to form a reasonable judgment as to them.”

The fact that someone has Alzheimer’s or is heavily medicated to alleviate pain would raise an issue concerning whether he or she has the requisite capacity to sign a Will.

However, people who suffer from periods of incapacity before and/or after signing a will can still meet the requirements of having testamentary capacity if they signed the Will during a “lucid interval” when they are thinking clearly and rationally.

 

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