Old ManTestamentary capacity refers to the mental ability required to make a Will. Generally speaking, people possess testamentary capacity if, at the time that the Will is executed, they: (1) are of adult age (in most jurisdictions that means over 18 years old), (2) understand the nature and consequences of executing a Will, (3) know the nature and extent of their property, and (4) recognize the people who are their family and loved ones. (Many jurisdictions also require the ability to apply this knowledge to create a coherent plan to dispose of their property at death.)

The nature and consequences of executing a Will
The person must understand that what he or she is doing is signing a Will and a basic understanding of how a Will works. This is because we want to make sure that it is the person's intention to create a Will (not a contract, IOU, present gift, etc.). The person must understand that a Will transfers property at death and is binding once executed with the relevant legal formalities.

The nature and extent of the property
A person of sound mind is presumed to know the property he or she owns. So, for example, if a person makes a bequest of property that the person has never owned or does not currently own, this is an indication that the person does not have testamentary capacity.

Family and loved ones
The person must know the so-called natural objects of his bounty -- the people who would be the expected recipients of the person's assets. When a person cannot identify his nearest family and other loved ones, or tries, for example, to leave property to fictional characters or famous deceased people, this is an indication that the person does not have testamentary capacity. (Note: Pets may be loved ones to us, but for Will purposes they are legally considered property. Therefore, the best way to leave a bequest for the benefit of a pet is to set up a testamentary trust that funds and details the care and arrangements you want for your pet.)

Other mental issues
What about if a person has been diagnosed with dementia, or adjudicated incompetent, or has mental illness, or has a drug or alcohol addiction? Can that person still make a Will? Yes, so long as the components of testamentary capacity are met and/or the person did his Will during what is known as a lucid interval -- i.e., a period of time during which the person was coherent and the threshold for testamentary capacity is met. Similarly, an insane delusion - a belief contrary to all rational objective evidence - does not prevent a person from making a Will; the delusion only invalidates any effected parts of the Will.

Testamentary capacity has the lowest threshold
Testamentary capacity is often described as being the lowest level of capacity needed in law -- this is for public policy reasons: we want to encourage people to have Wills. Therefore, a person may not have enough mental capacity to, for example, enter into a contract, but can still do a Will as long as the elements of testamentary capacity are met.

About Jim D Sarlis, Esq

I am an Elder Law / Trusts & Estates attorney with 25 years' experience, servicing NYC and Long Island. Our motto is "Big firm knowledge, small firm attention" because we offer the big-city resources and background often found only in large law firms, coupled with the personal service only a small community-based practice can give. With a team of dedicated experts in a variety of fields, we help seniors and their families plan for the future and minimize the overwhelming stress and burdensome costs of serious or long-term illness, while working to preserve their assets. We can also put care in place at home or in a facility, often so that it is paid by Medicaid. I have taught Will drafting at NY Law School and paralegal courses at CUNY. Having attended Columbia University, Fordham University School of Law, and NYU School of Law for the post-graduate tax program, and having worked at prominent NYC law firms, I have the strong background to help you and your loved ones. I am also the son of immigrants, and grew up poor as I went to school on scholarships, so I understand how hard families work for everything they achieve, and can appreciate the struggles our clients face. We concentrate on Elder Law, Trusts, Wills, Estate Planning, Medicaid Planning, Special Needs Planning, Guardianship, and Advance Directives (Power of Attorney, Health Care Proxy, Living Will).

Our office concentrates on Wills, Elder Law, Medicaid Planning, Trusts and Estates, Guardianship, Advance Directives, and Special Needs Planning. Contact us to discuss your particular situation: Tel. 718-276-0010 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Visit our website at http://www.jimsarlis.com for more information.