There are two components to testamentary capacity.  The first is a status and age requirement, and the second is that the testator be of sound mind.

As for the status and age requirement, in order to have testamentary capacity, a person must (1) be at least 18 years of age, (2) be or have been lawfully married, or (3) be a member of the armed forces of the United States, an auxiliary thereof, or the maritime service.  These are questions usually of little controversy because of their objective nature.

The next component is that the testator be of “sound mind.”  This is a legal phrase which is often the subject of controversy because it is subjective in nature.  There is a five-part test used in Texas to determine if a person is of sound mind.  A testator must possess the following characteristics:

  • Sufficient ability to understand the business in which he is engaged;
  • Sufficient ability to understand the effect of his act in making the will;
  • Capacity to know the objects of his bounty;
  • Capacity to understand the general nature and extent of his property; and
  • Memory sufficient to 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 to be able to form a reasonable judgment as to them.

“Sound mind” on the day the will is executed is all that is required.  When this occurs, the time of execution is known as a “lucid interval.”  Evidence of incompetency at other times is relevant only if it demonstrates the condition persists and has some probability of being the same at the time of the will’s making.

There is a presumption a person still is not of sound mind if he already has been found by a judge to be insane.  While a court starts with the presumption of insanity, other evidence may negate a person’s insanity at the time of making the will.  A person’s having received mental health services is not conclusive on the issue.  A judge’s determination a person is insane after the execution of a will generally is not admissible in court as evidence of a person’s state of mind on the date of a will’s execution.

If you know a potential testator may be approaching a time when his soundness of mind may be questionable, it is important to execute a will and other estate documents as far before this time as possible.  A decline can occur much more quickly than you are anticipating.

Testamentary capacity is a subject fraught with many perils.  There is an especially strong urgency for the aging and those with mental health problems because the limitations accompanying each often continue to grow over time.  Do not wait until it is too late.  The best thing, of course, is to make a will and other estate documents now to avoid any problems that might arise and to have the protections of an estate plan as soon as you can.

Please see my article posted on my website and Facebook page, Wealthy or Not, Here’s Why You Need A Will.