Like a legal document or contract, not everyone has the ability to make a will. In some cases, their testamentary capacity could be challenged in the probate process. If they are found to have lacked the ability to make a will when they did, a court will not enforce it.
The main reason why someone may lack the testamentary capacity to sign a will is that they are in an advanced state of cognitive decline. This is often the case when the testator has dementia or other cognitive disabilities. People are also not able to legally sign a will when they have mental handicaps or they are under the age of 18.
In order to have testamentary capacity, the person making the will must have:
- An understanding of their own property that is a part of the will
- The disposition of property that is included in their will
- The ability to understand how the pieces fit together and to form a coherent plan
A family will only find out that the testator did not have the required capacity after they pass away, and the will is being executed. Then, this will throw out the previous plan and leave things up to the court. Testamentary capacity is why you should make your will well in advance of when you may need it and when you are in good health. You never know when things will change, and you will no longer have the legal ability to make a will.
Call a Libertyville Estate Planning Lawyer
Get the help of an estate planning lawyer early. The Law Offices of Chuck Newland & Associates help families just like yours when they need to make plans for when times may get worse. Contact us online or call us today at 847.797.9300 to begin this critical process.
