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Understanding the concept of testamentary capacity

Virtually every jurisdiction, including Georgia, has various requirements in place regarding what it takes to make a valid will and other estate plans. 

One such requirement — in every state — is that someone must have testamentary capacity when drafting their will. There are several ways in which a testator proves that they meet this requirement. 

How do you demonstrate testamentary capacity?

Testators must generally be at least 18-years-old when they draft their will. They can prove that they have the testamentary capacity by describing the purpose of the will, identifying the property they own, who their potential heirs are and articulating how they plan to dispose of their assets. 

Assessing an individual’s testamentary capacity is particularly crucial to determining whether a will is valid. Probate judges commonly inquire about whether an elderly individual is suffering from a disease, like dementia, that may adversely impact their mental capacity before validating their will. 

What’s the link between testamentary capacity and undue influence claims?

It may raise red flags in a probate judge’s mind when the bulk of a testator’s estate doesn’t go to their immediate family members. A decedent’s loved ones may inquire whether someone subjected the testator to undue influence, such as coercion. That can lead to questions about the testator’s capacity to make sound decisions about their estate at the time a will was drafted.

Attorneys have a fiduciary duty to ensure that a testator has the mental capacity to create a will before they assist in that process, which is why it’s often best (if not outright required) to have an attorney draft your will. That can minimize challenges to your estate plans down the line. 

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