Testamentary Capacity

We often think of Wills as our most incontrovertible and enduring documents. But a Will is always vulnerable to attack when offered into probate, and one of the most common objections is that the person who created the Will (the “testator”) lacked “testamentary capacity” when creating the Will.

For example: Father (the testator) has two children, Son and Daughter, and no spouse. In his final days, Father executes a Will leaving everything to Son. Father passes and Son offers the Will into probate. On its face, the Will appears to be valid: it is properly signed before two witnesses, and notarized. It reflects all the “testamentary formalities” required for a valid Will. However, Daughter knows that around the time Father signed the Will, he was in hospice care and somewhat non-responsive. Daughter may be able to challenge the Will and set it aside on the basis that Father lacked testamentary capacity to create a Will. If successful, Son and Daughter will take equally under the laws of intestacy (the default distribution scheme for those dying without a Will).

So what exactly is testamentary capacity? The concept is flexible and unique to the law; there is no single test that can conclusively establish lack of capacity, and evidence is rarely dispositive one way or the other. In Massachusetts, the Courts have developed the concept through caselaw, which can be summarized roughly as follows:

Testamentary capacity requires the ability on the part of the testator to understand and carry in mind, generally, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease of weakness and which might influence the disposition of his property. It requires the ability, at the time of execution of the alleged will, to comprehend the nature of the act of making a will. Goddard v. Dupree, 322 Mass. 247, 250 (1948).

When a Will is offered into probate, there is a presumption that the testator possessed testamentary capacity when the Will was created. If a challenger produces evidence of lack of capacity, the proponent of the Will must then prove capacity by “a fair preponderance of the evidence.” You can begin to see how a dispute over capacity – which is by nature a dispute over the mental state of someone who is no longer with us at a particular moment in the past – can become messy.

Nevertheless, there are rules of ethics, law and evidence that tend to support the presumption in favor of upholding a Will. A lawyer drafting a Will for a client may resolve any question as to the client’s capacity in favor of finding capacity. Deterioration in mental capacity or loss of alertness that comes with age, taken alone, is not sufficient to invalidate a Will. Likewise, sporadic episodes of hallucinations and confusion, taken alone, do not defeat the presumption of capacity. In other words, testamentary capacity can be “fleeting”, meaning the burden of proving lack of capacity at a specific moment in time is quite difficult for the challenger.

Can anything be done to safeguard against a possible challenge to the testator’s capacity? The answer, as with many legal questions, is both “yes” and “no”. An experienced estate planning attorney should be able to anticipate a Will contest among heirs and take necessary precautions in drafting and executing documents. A physician’s evaluation can be conducted simultaneously with the execution of the Will, and a “no-contest” clause can be included in the Will. Witnesses should be selected with care, and the lawyer should take care to conduct the execution ceremony in a manner to clearly demonstrate the testator’s capacity to all present. The distribution scheme can be crafted to disincentivize a contest (that is, the testator can buy peace of mind by leaving a gift to an otherwise troublesome heir). These and other measures can work to insulate a Will from being declared invalid. But, as even the most cautious lawyer can tell you, where there are thoroughly disappointed and aggressive heirs, an expensive Will contest – albeit an ultimately unsuccessful one – can be filed under any set of circumstances.

If you have questions or concerns about your estate plan or the estate plan of a loved one, please feel free to call or email us for a free consultation.