Do you have the mental state and testamentary capacity to make a Trust or a Will?


When making a Will, states Brian D. Lerner,  you must have the Capacity to know what you are doing. For example, if your uncle wants to make a Will, but he cannot remember a lot of things and some people say he has dementia, does he have the testamentary capacity?  Can he still make the Will?


First, explains Brian Lerner, testamentary capacity is the mental state of a person making the estate document and whether that person has a sufficient mental state in order to make the estate document.


The Law Offices of Brian D. Lerner indicates that this is a testamentary capacity issue. If he does not have the capacity, then the Will could very well not be valid. Testamentary capacity deals not just with Wills, but Trusts and any other Estate document such as Durable Powers of Attorney and Healthcare Directives and Codicils and Amendments.


Watch Brian D. Lerner discuss testamentary capacity


The question to ask states Brian Lerner is how do you tell if somebody has testamentary capacity?  A determination that a person lacks testamentary capacity to do a certain act must be supported by evidence of a deficit in at least one of the following mental functions and evidence of a correlation between the deficit and the decision or act in question: alertness and attention; information processing; thought processes; and the ability to modulate mood and affect.  Brian D. Lerner states that this particular test for lack of testamentary capacity is not entirely clear, but at least gives a basis upon which to begin to see if the person lacks testamentary capacity or has testamentary capacity.


Brian Lerner states  that a deficit in any of the specified mental functions is relevant only if, by itself or in combination with other mental function deficits, it significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question. The mere diagnosis of a mental or physical disorder is not sufficient by itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. Thus, just because somebody might have dementia or some other psychological condition, does not by itself mean that they lack testamentary capacity.


So what criteria must be shown to show asks Brian D. Lerner, Estate Attorney, in order to show that a person has testamentary capacity? Every adult (including an emancipated minor) of sound mind can make a will. A person is not mentally competent and does not have testamentary capacity to make a will if, at the time the will is executed, either of the following is true: The testator does not have sufficient mental capacity to: Understand the nature of the testamentary act; Understand and recollect the nature and situation of his or her property; or remember and understand his or her relations to his or her living descendants, spouse, parents, and those whose interests are affected by the will.  Alternatively, another test to determine that a person does not have testamentary capacity is that the testator suffers from a mental disorder involving delusions or hallucinations that cause the testator to choose a disposition for his or her property that he or she would not have chosen but for the delusions or hallucinations.


Brian Lerner states that the above tests will tell most of the time whether somebody has testamentary capacity. However, there Is  another test for testamentary capacity. There must be an ability to communicate.  This provides that a person lacks capacity to make a decision (presumably including testamentary decisions) unless the person can communicate, verbally or by other means, all of the following: (a) The rights, duties, and responsibilities created by or affected by the decision; (b) The probable consequences for the decisionmaker and, when appropriate, the persons affected by the decision; and (c) The significant risks, benefits, and reasonable alternatives involved in the decision. Therefore, explains Brian D. Lerner, if there is testamentary capacity issues, you certainly must take care of it prior to when the Will or Trust is made.