b2ap3_thumbnail_shutterstock_128636027.jpgIt is rather common for people to think of estate planning as an end-of-life task. Estate planning attorneys are often called to visit clients in skilled nursing facilities, hospitals, and hospice centers. However, waiting until this point to make a will can have negative ramifications. One of the major requirements for a will to be considered legal and enforceable is that the testator (the person creating their will) must have the mental capacity to do so. This standard is known as “testamentary capacity.” It is designed to prevent those who are incapacitated from executing a will that they would not have agreed to if they were not incapacitated. It also protects elders and their families against those who would exercise undue influence over a disoriented adult during the estate planning process.

Testamentary capacity is a relatively low bar – even those with early forms of Alzheimer’s or dementia may be able to make a will under the right circumstances. An attorney will be able to apply this standard to help determine whether someone still has the capacity to make a will.

How is Testamentary Capacity Determined?

There are a few rather specific standards that must be met for a person to have testamentary capacity. They are:

  • Knowledge of natural heirs – A testator must have an understanding of who their natural heirs might be, such as their children or grandchildren. This does not have to be a perfect recitation of all grandchildren’s names and ages – the testator only needs general awareness of who their close family members are.
  • Understanding assets – A testator must be aware of what they own in order to dispose of it in a will. Red flags in this area might include things like claiming to own a house that was sold many years ago or forgetting about a major asset like a retirement account.
  • Intent – The testator must understand what he is doing by signing a will and be able to form the intent to divide up his future estate property amongst beneficiaries.

If any of these standards are not met, the would-be testator may no longer have the capacity to make a will.

Why is Testamentary Capacity so Important?

After the testator has passed away, their will could be set aside if a challenger is able to demonstrate that the decedent lacked testamentary capacity at the time the will was executed. This could mean that the decedent’s wishes will not be followed.

Contact an Illinois Wills Attorney

A. Traub & Associates is skilled at creating strong, enforceable wills. Our Lombard wills lawyers may be able to help you demonstrate testamentary capacity where it is necessary and possible. Contact us at 630-426-0196 for a free consultation.

Source:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2104&ChapterID=60&SeqStart=5300000&SeqEnd=6800000#:~:text=Sec.,the%20time%20of%20his%20death.

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