A will seems like a simple legal instrument that can be used to dictate how assets will be distributed upon death. While that’s true to a certain extent, creating a legally valid will takes much more than just writing down what you want on a piece of paper. It takes a formalized process that’s probably best handled by an attorney.
What about mental capacity?
But another key aspect of will creation is mental capacity. In order for a will to be deemed legally valid, the individual who creates it, the testator, must have the requisite mental capacity. This means that he knows and understands the extent of his estate, the intent of the will and its various provisions, and how the will disposes of estate assets.
How is mental capacity assessed?
If a will is contested, then mental capacity may be drawn into question. To determine whether an appropriate mental capacity existed at the time of the will’s creation, a court may look at each of the following:
- The extent of alertness
- The amount of attention that can be maintained
- The presence of any short or long-term memory issues
- Ability to identify people and things
- Ability to logically reason
- The existence of hallucinations or delusions
- The ability to modulate one’s mood
These are just some of the considerations that may be taken into account. Keep in mind, though, that even those who suffer from serious conditions like Alzheimer’s disease can sometimes possess the requisite mental capacity to create a will. That’s because the focus is going to be on how he or she presented at the time of the will’s creation.
Do you need a legal ally on your side?
The estate planning and probate processes can be much more complicated than you think. That’s why it is wise to have a skilled legal advocate on your side as you navigate your challenges.