Testamentary Capacity

Testamentary Capacity

I just finished reading John Grisham's Testament. In this 1999 novel, the main theme concerns the question of whether an elderly billionaire was mentally competent when he wrote his Last Will and Testament leaving his entire fortune to an illegitimate daughter while omitting his other six children. The issue of whether a client has the capacity to execute estate planning documents is one that often must be addressed by elder law attorneys.

There are different levels of capacity depending on the type of transaction that is being considered. The degree of capacity required to enter into a business contract, for example, is greater than that required to make a testamentary gift or conveyance. In addressing whether the client has testamentary capacity, the attorney should determine, at a minimum, whether the client understands the extent of his or her estate and knows the natural objects of his or her bounty.

There are complexities inherent in determining capacity and each situation will be different, requiring a different level of assessment. There are various tools that can be used to determine capacity such as legal capacity questionnaires and mini-mental exams. Sessions can be videotaped and recorded as a way of documenting the asessment. For some clients, a brief note in the file regarding the client's understanding could be sufficient.

In all situations, though, some type of assessment will be useful in the event that someone, at some time, questions whether the client was competent and the Will is valid.
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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

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