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Why doesn't a person have testamentary capacity?

When writing a will, you want to consider the fact that people may challenge it. You can take steps to help ensure that your will is followed properly.

One of the main reasons that people challenge a will is on the grounds that the person who wrote it did not have testamentary capacity. This is something that it's assumed adults have, and it means they understand the process and the consequences while drafting the will. If someone claims you didn't have testamentary capacity, they're basically saying that you did not fundamentally understand the will and so it should not stand up. It doesn't reflect what you really wanted.

Some reasons that the court may agree is if:

  • You have senility and you don't know what documents you're signing.
  • You have dementia, and it causes you to forget important things -- your children, your assets and the like.
  • You have legally been declared insane.
  • You did not have the mental capacity to write and sign your own will.
  • You were under the influence at the time, and your thinking was impaired.

For instance, perhaps you had a will that included all three of your children. You spent a night out drinking with one of your kids and then changed your will that evening to cut out the other two. They're likely to say that undue influence was used while you were impaired by alcohol. They'll challenge your alterations.

The key is to fully understand the legal process of writing a will, the steps you need to take and how to make alterations. If you know how and why wills get challenged, you can write and file yours in a way that makes it clear it will stand up in court.

Source: FindLaw, "Reasons to Challenge a Will," accessed Feb. 16, 2018

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