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What is testamentary capacity?

The legal term "testamentary capacity" refers to the capacity of an individual to draft a will for him or herself. When someone lacks testamentary capacity, a court will render any will that he or she drafted and signed is not valid. A minor, for example, who is under the age of 18, does not have testamentary capacity to draft a will. Nevertheless, in some circumstances, if the minor is married or in the military, he or she might be able to legally formulate a will.

Adults in Illinois and the rest of the United States benefit from the presumption of testamentary capacity. That said, a lawsuit could be filed by someone who believes that a will that was drafted and signed by a loved one without testamentary capacity. These challenges usually get filed by a family member who was poorly treated by a will that was potentially drafted by someone suffering from a lack of mental capacity -- perhaps due to dementia, senility, influence by a substance or another reason.

To prove a lack of capacity when challenging a will, the litigant will have to prove that the testator lacked a full understanding of the consequences that would result from the will. To determine if the testator had "capacity," the court will consider the following:

  • What was the value of the property involved?
  • Who are the expected beneficiaries and who does the will provide for?
  • What is the disposition outlined in the will and what does it mean?
  • How do the above factors come together to illustrate the distribution of property?

Depending on the answers to the above questions, an Illinois court might choose to grant or reject a will that is challenged due to lack of testamentary capacity. If you're facing a situation that relates to this important legal issue, be sure to discuss the facts about your case with a qualified and licensed counselor.

Source: FindLaw, "Reasons to Challenge a Will," accessed Nov. 3, 2017

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