What Lack of Testamentary Capacity Really Means

What Lack of Testamentary Capacity Really Means

A dummy with a last will and testament pager

A small dummy stands on a last will and testament document

Lack of testamentary capacity may be grounds to dispute the validity of a will in Illinois. Since the law presumes that a person possesses the mental capacity to execute a will unless it is proven otherwise, the person seeking to invalidate a will bears the burden of proving the testator lacked the capability to create a will at or near the time the document was created.

What Is Testamentary Capacity?

Testamentary capacity is the mental ability of a person to make or alter a will. To execute a valid will in Illinois, testators must be at least 18 years old and of sound mind and memory. The creator must possess the mental capacity to know and remember his or her family members, understand the character, nature, and relative value of the assets owned, and develop a plan for the distribution of the property.

Cognitive Impairments Impact Testamentary Capacity

A diagnosis of cognitive impairment does not automatically affect the presumption of a person’s testamentary capacity. Some cognitive disorders and learning impairments, such as autism, present early in life while others, like dementia, may not develop until much later. Therefore, the court may consider factors such as the type and severity of a testator’s impairments and the complexity of the will.

There is a presumption that those previously deemed unable to make decisions or care for themselves by the courts lack the testamentary capacity to create a valid will. Any wills established by people after the date on which the court named a guardian for the care of their persons or estates are assumed void. People in such cases may create valid wills, however, if their guardians submit requests to the court on their behalf seeking authorization that is accompanied by a physician’s report affirming their testamentary capacity.

Contesting a Will Based on a Lack of Testamentary Capacity

The burden of proving a testator lacked the necessary mental ability at the time of a will’s execution lies with the person challenging the document’s validity. To this end, people contesting wills based on a lack of testamentary capacity will need to present strong evidence that demonstrates the testator’s mental condition at the time the will was created. Medical records, expert testimony, and personal witness statements often serve as evidence to disprove testamentary capacity.

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