In cases of Will contests, the claims are sometimes based on whether the testator had "testamentary capacity" at the time he or she signed the Will. If lack of capacity is established by a standard of clear and convincing evidence (establishing a substantial probability of truth), the court will invalidate the Will.
Generally, most people at least 18 years of age are considered competent to make and execute a Will. However, the testator must be able to meet three more criteria to establish capacity. The testator must:
- understand the nature, situation, and extent of their property;
- understand the claims of others (heirs and beneficiaries) on their bounty; and
- be able to hold these things in their mind long enough to form a rational judgment concerning them.
The mental capacity required to execute a Will is much lower than that required to enter into a contract. Suffering from periods of dementia alone does not necessarily preclude testamentary capacity. A Will executed during even a brief period of lucidity while possessing testamentary capacity in making those decisions, is valid. Also, a person subject to a conservatorship may have testamentary capacity.
Nevertheless, in a Will contest, clear and convincing evidence that the testator suffered from some type of dementia could be sufficient for the court to invalidate the Will on grounds of lack of capacity if any of the above three criteria are in doubt.
There may be other factors that give rise to a Will contest. The person contesting the Will might produce evidence of undue influence, such as a family member or caretaker who had exerted sufficient influence to override the testator's free will, with the influencing person receiving a bequest as a result. If the court finds clear and convincing evidence of undue influence, it could invalidate part or all of the Will.
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Determining testamentary capacity in the estate planning stage isn't always clear cut. However, issues of capacity can be addressed with the help of a qualified estate planning attorney.