There are five components to testamentary capacity that must be present for a will to be valid. This is also the mental ability to create a will. You must be of majority age (usually over 18), know what a will is and what it's purpose is, have property to distribute make a plan to divide the property and know who the people in their life and who is important to them.

Age

Making a will in an adult activity and should understand life and death, the importance of family and recognize the value of money and property. Many young people don't make wills, not necessarily because they don't have any property, but they aren't mature.

Will

To make a will, you must know what a will is and that you are making a will. Also, you must understand that property transfers property only after death, and demonstrate that making a will is a solemn act.

Family

You also must know who's important in your life, who contributed to your welfare or who deserves to inherit your property. For example, if you leave property to "Uncle Sam" who works for the federal government, you don't have "testamentary capacity" unless you actually have an uncle named Sam who works in the federal government.

Often, people would like to make sure that their pets are cared for after they die. Since pets are technically considered property, you can leave the pet to someone in your will. You should also discuss this with the future pet caretaker and make sure that they will agree to take care of your pet. Usually a trust is created in these circumstances, in order to take care of pet expenses, such as veterinary care, food, etc.

The big advantage of creating a trust in this case is that you describe in detail what the trust is to be used for, when the trust will end or what to do if the caretaker misuses trust funds. For example, if the caretaker decides not abide by the trust instructions and uses the money for himself or herself instead, then the trustee can stop giving money and remove them from being the caretaker of your pet.

Property

Knowing the general nature and extent of your property is another requirement. A person who owns a houseboat, not a ranch in the mountains, can leave a houseboat to an heir. If that person wants to leave a ranch that isn't your property to someone, that's not considered testamentary capacity. Any deviation from the reality of your situation weakens your capacity for your will to be declared valid and could be contested.

Plan

Another factor in creating a well-rounded and valid will is the ability to construct a plan to distribute property with the knowledge of family, property and what a will is. The plan may be eccentric, unusual or unnatural, but if it's coherent, the requirement of testamentary capacity is met.

A sample will that is made without testamentary capacity is one where a person leaves half of their property to a brother, half to a sister and half to their parents. Since you can't have three halves, this would indicate a lack of that capacity.

Mental Illness

Mental illness doesn't necessarily prevent a person from making a will. Someone with a mental illness may be able to make a will when he isn't suffering from the symptoms of mental illness, called a lucid interval. It's also true that an insane delusion, a belief contrary to all evidence ("I give my son the gold crown given to me when I was the King of the Canada"), doesn't prevent a person from making a will. The delusion only invalidates the affected parts of the will (that is, the testator's son does not get a gold crown since there isn't one).

Questions for Your Attorney

  • What is testamentary capacity?
  • What are some of the components of testamentary capacity?
  • Can someone with a mental illness still have testamentary capacity?