Sections Contest Property disposition Common types Other types Governing doctrines 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 or alter a valid will.
Those who contest a will for lack of testamentary capacity must typically show that the decedent suffered from mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them.
[5] Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped.
The testamentary capacity matter is most frequently raised posthumously, when an aggrieved heir contests the will entered into probate.
Even when a testator is found to have lacked testamentary capacity due to senility, loss of memory due to the aging process, infirmity or insanity, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the testamentary instrument.
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.
Where a will is rational, professionally drawn, seemingly regular in form and is made by a person whose capacity is not in doubt, there is a presumption that the will is valid.
In his judgment, Cockburn CJ set out a test of the capacity to make a valid will, which is still applied in many Anglophone jurisdictions today.
Modern psychiatric knowledge has allowed the test to be developed by having a further element added and that is for the testator to be capable of exercising his decision-making powers.
This, coupled with much greater prominence of negligence claims against will draftsmen,[23] means that a careful understanding of what the draftsman should be doing becomes vital.