Focused And Personalized Attention
Concerning Your Estate Planning Needs

What is testamentary capacity and how is it assessed?

On Behalf of | Dec 30, 2022 | Estate Planning |

A will is basically the cornerstone of any estate plan. Through your will, you can determine how your assets will be distributed when you die. You can also designate a guardian for your minor child. Without one, California intestacy laws would determine what becomes of your hard-earned wealth.

However, to create a valid will, you must meet certain legal requirements. One of these is the level of mental capacity to make an informed decision, known as testamentary capacity. But what exactly is testamentary capacity and how is it determined when creating a will?

Understanding testamentary capacity

It is important to understand that as far as wills are concerned, testamentary capacity is not necessarily a medical test. Rather, it is a legal test. This means that the judge, rather than the doctor, has the authority to determine your ability to understand and write a will. However, a doctor or family members who share a living space with you on a regular basis may be involved when determining whether your mental capacity has deteriorated over time or not.

To be deemed mentally competent to write a will, you must meet the following conditions:

  • You must understand the act of writing a will and the implications therein
  • You must understand the nature and extent of your estate
  • You must be able to evaluate your beneficiaries and understand what you are allotting to each of them
  • You must be able to clearly articulate the rationale for distributing your estate to your beneficiaries. This is especially important if you are revising your will and redistributing your assets in a manner that significantly differs from your wishes in the previous will.
  • You must not be suffering from any mental disorder like dementia or delusions that can interfere with your judgment.

Unlike physical capacity, testamentary capacity has to do with the testator’s ability to understand and make a will. Find out how you can create a will that will speak for you when you are gone.


Let’s Do This Together.

FindLaw Network