Testamentary capacity
The mental capacity required to make a valid will. The standard is lower than the phrase “sound mind” suggests.
What it means
A person generally needs to understand that they are making a will, roughly what they own, who would ordinarily be expected to inherit, and how the will disposes of it.
It is judged at the moment of signing. A person with dementia may have capacity on a good morning and lack it in the afternoon.
It is a different and generally lower standard than the capacity needed for a complex contract.
Why it matters
Families frequently believe a diagnosis ends the possibility of making a will. Often it does not, and waiting can close a window that was still open.
It is also a frequent ground for a will contest, which is why the circumstances of a late signing — who arranged it, who was in the room — end up mattering as much as the medical record.
When you are likely to meet it
- When a parent wants to make or change a will after a diagnosis.
- When a will signed shortly before death is questioned.
- When a lawyer asks about the timing of a signing.
How this varies by state
The precise standard, and who bears the burden of proving capacity or its absence, are set by state law.