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The Heritage Law Center, LLC Blog

What Does “Having the Capacity to Make a Will” Mean?

POSTED ON: January 14, 2019

A Last Will and Testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death. In order to create a valid will, the testator must be 18 years old or older and must be of sound mental capacity.

“Testamentary capacity” is the legal term used to describe a person’s legal and mental ability to create or alter a valid will. Testamentary capacity requires that the person making the will understand the nature of making a will, what they are doing by signing the will, who may inherit the property whether there’s a will or not, and a complete understanding of the type of property and assets they own.

The reason the testator should be of sound mental capacity is that if the person doesn’t have the mental clarity to make informed decisions, they might create a will that doesn’t really reflect their true wishes. Also, if the person is suffering from a mental illness or a mental incapacity, they might be vulnerable to other people who try to influence them in regard to the contents of the will for their own personal gain.

If a testator has a history of suffering an illness in the past that affected their mental capacity and there is concern that someone might challenge the will in the future, a medical professional can witness the making of the will. This effort could help make it more difficult for someone to challenge the will.