Aug 11, 2017

Posted in Wills and Estates

What Goes into Testamentary Capacity?

Testamentary capacity refers to the legal term for an individual’s mental ability to make a valid last will and testament. It is sometimes called a “Letter of Administration” or “Letter of Representation”. If you have prepared a last will and testament, you may be wondering if you have done enough to demonstrate testamentary capacity and whether your last wishes will be subject to a court battle after your passing.

How is testamentary capacity determined?

To demonstrate testamentary capacity, individuals meet two requirements: 1) they must be at least 18 years old; and 2) they must meet a mental capacity requirement. To meet the mental capacity requirement, the individual must demonstrate the following:

  • Awareness of what a last will and testament is, what it does, and that they are making one
  • An understanding of what property they own
  • Knows who their close family members are
  • The ability to decide how to distribute their property

Metal capacity is only required at the time you execute your last will and testament. It does not require the mental capacity to manage other affairs or daily business transactions. Keep in mind that this requirement is not strict – forgetting faces or minor details does not, by itself, prove incapacity. The court presumes that an individual has testamentary capacity and the individual can only be found incapacitated with clear and convincing evidence.

The importance of witnesses

In order for your last will and testament to be valid, it must be witnessed by someone of “sound mind”. This witness will state in writing that you appeared to have testamentary capacity. It is important to choose witnesses that know you well, and who are in a position to make that evaluation, particularly if questions about your mental state arise after your passing. Furthermore, the Supreme Court of Virginia stated that the critical moment for determining an individual’s mental capacity is at the time the last will and testament is executed. All the more reason to seriously consider those that will be selected to witness the execution of your will.

Protecting your property and assets is our goal

The property and assets that you accumulated over the course of your lifetime should be protected and distributed according to your wishes. By taking certain precautions to demonstrate testamentary capacity at the time you develop your last will and testament, you can rest easy knowing your wishes will be carried out. Consult with a leading Maryland estate planning attorney at Altman & Associates to discuss how you would like your estate distributed after your passing. We are the premier estate planning firm in Maryland, Washington, D.C., and Northern Virginia, and have been serving individuals and families for more than 40 years. Contact us today at 301-468-3220 or online and arrange a confidential consultation with one of our estate planning attorneys. Altman & Associates has convenient offices in both Rockville and Columbia.

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