What Is Testamentary Capacity? How Does One Establish That?

The proponent has the burden of proving testamentary capacity. The testator need not have a superior or average intellect, but he must understand in a general way what it is that he owns, who the natural objects of his bounty are (meaning who the members of his family are) and how he wants to distribute his estate. He does not have to understand these things in a perfect way, but he must understand in a general way how they relate to each other and to his family.

The focus in determining testamentary capacity is always at the time that the will is executed and signed. If a person is generally or usually of sound memory but was not so at the time of execution for some reason (like being drunk or ill), then the will would be considered invalid. Conversely, if the testator’s mind and memory were usually unsound due to senility or drug addiction, but the will was actually signed at a time of lucidity, then the will would be considered valid.

Having a deathbed will is something that is relevant but it’s not sup positive on the issue of validity of the deathbed will. Testimony on the testator’s condition before and after the execution is relevant only because it may reflect on a testator’s mental condition at the time of execution. Two presumptions operate here. The first is that if the testator was incompetent before the execution, then he remains incompetent. The second presumption is that if the testator’s mind was sound before the execution, then he remains competent at the time of execution. If the decedent is operating under an insane delusion, then the court would deny the will probate.

The mental capacity required for wills is less than that required for any other legal instrument. This is because the testator does not negotiate at arm’s length as he must when he is signing a contract, for example. In fact, the level of intelligence or memory needed is quite low, and oddness and eccentricity do not necessarily signal a lack of testamentary capacity. A testator may sign a will written in English even if English is not his or her primary language, so long as they understand the contents of the will. The attesting witnesses may give their opinion as to whether or not the testator had testamentary capacity at execution. Psychiatric and other experts may also give their opinion on testamentary capacity, although it will only be minimally helpful if the experts did not treat the decedent personally. The typical will contest presents enough special circumstances to warrant a physician’s expert testimony, but if the expert testimony contradicts the facts, then the facts prevail. Other persons may testify that the testator’s actions struck them as being irrational but may not offer an opinion on his or her testamentary capacity.

The attesting witnesses pursuant to EPTL 3-2.1 require that two witnesses attest to the validity of the will. In most probate proceedings, the proponent simply submits the attesting witnesses’ written self-proving affidavits, which are usually attached to the will at the time that the will is executed. However, other examples may occur in some situations. For example, witnesses can come to court to testify and the court could dispense with the witness testimony. In addition, a testimony may be given by affidavit. To exacerbate probate proceedings and minimize expenses, the court permits proof of wills by an out-of-court affidavit of attesting witnesses. Therefore, as described previously, attorneys supervising will executions always have the attesting witnesses sign self-proving affidavits, have them notarized and stapled to the back of the will.

If no contest or difficulty in proving the will exists at the time of probate, then the self-proving affidavits suffice as proof of due execution, testamentary capacity and freedom from undue influence or fraud. Courts have held that the attestation clause along with self-proving affidavits create a presumption of compliance with the statutory requirements. They have also held that the action of the self-proving affidavit does not create a presumption that the will is invalid. A beneficiary of the estate should never serve as an attesting witness.

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