In or out? Testamentary Capacity and Wills

Testamentary Capacity. What does this mean? It’s really a legal way of saying “sound mind”. The issue arises often when individuals challenge a Will. The challenger will argue that the Testator (the person that made the Will) lacked sufficient testamentary capacity when making the Will; and thus, it should be deemed invalid. It is more prevalent with the aging population.

Michigan law states that an individual has the sufficient testamentary capacity to make a Will if the following requirements are met : (1) the individual has the ability to understand that he/she is providing for the disposition of his/her property after death; (2) the individual has the ability to know the nature and extent of his/her property; (3) The individual knows the natural objects of his/her “bounty”; and (4) the individual has the ability to understand in a reasonable manner the general nature and effect of his/her act in signing the Will.

Whether someone has testamentary capacity is judged as of the time the Will was executed- not before or after. If a person’s mental capacity varies over time but he or she has lucid intervals, then he or she is deemed to have testamentary capacity during the LUCID intervals to make- or revoke a Will. It is up to the person contesting a Will to show that capacity was lacking. This can be grueling and results in lengthy, costly litigation.

Sounds like a lot, right? It certainly can be. Make sure you and your loved ones are fully aware of potential ramifications as time goes on and you make or change your estate plan. Questions? Concerns? Contact us today!!!

P: 248-395-3699 E:

**Please be sure to read the disclaimer section on our site!!


Recent Posts

See All

To revoke or to not revoke? That is the question…

A trust is an estate planning tool that a person sets up during their lifetime, which allows them a way to distribute their assets upon their death, while maintaining privacy for themselves and their

You Think You Know… But You Have No Idea

We cannot stress enough the importance of planning to avoid probate court. Probate is a court-supervised process of gathering a deceased person’s assets and distributing them to creditors and inherito

When Time Has Run Out…

We are often contacted by individuals attempting to get power of attorney over a parent, sibling, child or other relative AFTER they have fallen ill- whether it’s on account of Alzheimer’s, a debilita