Testamentary capacity

In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make a valid will. This cobncept has also been called sound mind and memory or disposing mind and memory.

Presumption of capacity

Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or some similar unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know what he was doing when he executed the will.

Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions.


The requirements for testamentary capacity are minimal. Some courts have held that a person who lacked the capacity to make a contract can nevertheless make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of:

  1. The extent and value of their property
  2. The persons who are the natural beneficiaries
  3. The disposition they are making
  4. How these elements relate to form an orderly plan of distribution of property.

The legal test also implies who the typical litigant in a will contest will be: disgruntled heirs who believe they should have received a larger share of the estate than what they received under the will. Those who would bring such a challenge to a validly executed will need to raise the point, but then the burden of proof is on the party propounding the Will to show that the testator did have the relevant capacity, with a standard of clear and convincing evidence.

Proof of testamentary capacity

Those who would challenge a will for lack of testamentary capacity must typically show that the decedent suffered from some sort of mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. Dead man's statutes sometimes restrict evidence which can be admitted concerning transactions with the decedent.

Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped. On video, they will ask the testator about his property and about his family, and go over the contents of the testator's will, to create a record that the testator met the qualifications.

Even when testators are found to generally lack testamentary capacity due to senility, loss of memory due to the aging process, infirmity or insanity, courts will sometimes find that the testator had a "temporary period of lucidity" or a "lucid moment." This finding will validate a will that would otherwise be denied probate due to lack of testamentary capacity.

A way to forestall a Will contest would be to have a self-proving Will, in which an affidavit of the witnesses to the Will specifically swear or affirm that the Will was prepared under the supervision of an attorney.

See also


  • Addington v. Wilson, 5 Blackf. (Ind.) 137, 61 Am.Dec. 81 (Sup. Ct. Ind. 1854)
  • Allman v. Malsbury, 224 Ind. 177, 65 N.E.2d 106 (Sup. Ct. Ind. 1946)
  • Hays v. Harmon, 809 N.E.2d 460 (Ind. Ct. App., 2004)

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