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Understanding testamentary capacity

On Behalf of | Oct 19, 2020 | Real Estate Litigation |

It is very difficult for anybody to challenge a will. Generally speaking, the courts are reluctant to try and change somebody’s final wishes, given that the person in question is no longer around to speak for himself or herself. In fact, about 99% of all wills go through probate and nobody challenges them.

However, there are some situations that would allow you to challenge a will. One of the most successful ways to challenge a will, according to FindLaw, is to prove that the writer of the will did not have testamentary capacity at the time he or she was writing it.

What is testamentary capacity?

Persons over the age of 18 have testamentary capacity in the majority of situations. Testamentary capacity is why legal adults have rights and responsibilities that minors do not. For example, a person over the age of 18 can create a will but a person under the age of 18 cannot.

How can I challenge a will with testamentary capacity?

In the majority of these cases, the plaintiff alleges that the writer of the will lacked testamentary capacity at the time they created it. Usually, this is due to a degenerative mental disease like Alzheimer’s or Parkinson’s. It is also possible for somebody to lack testamentary capacity due to the effects of medications or controlled substances.

If you would like to to challenge a will using testamentary capacity, you must prove that the writer of the will did not understand the value of the assets at hand, who the beneficiaries of the will were, what making a will meant, and how these situations relate to property distribution.