If you’re one of those people who has put off your estate planning until you’re well into your senior years, you’re certainly not alone. However, you may need to consider the possibility that one or more family members could potentially dispute your will or other estate plan documents on the grounds that you didn’t understand what you were doing.
That’s more likely to be true if you’re divorced or widowed and you don’t have regular contact with your adult children. Of course, a will or estate plan contest is always more likely if someone isn’t left the inheritance they anticipated – or perhaps were left out completely.
You don’t want any doubt that you were of “sound mind” or, in legal terms, that you had the legal capacity” to put your estate plan in place. You also don’t want your family to believe you were under the “undue influence” of someone who misled or forced you into leaving assets and/or authority to them.
Note that there are different types of legal capacity required for different types of estate plan documents. However, they all revolve around a person’s ability to understand the document and the consequences of what they’ve designated in it.
What does it mean to have testamentary capacity?
This is the type of capacity that’s required to create a will. It includes things like a person’s ability to understand:
- What assets they have and what they’re worth
- Who their heirs are, how they’re related and whether there’s anyone they’re required to include
- What and how much they’re leaving each beneficiary (including non-related beneficiaries) and the potential consequences of doing so
A person also needs to understand what it means to sign the will and the authority it carries.
Can you prove your legal capacity?
Some doctors will sign a document attesting to competency or at least refer you to a doctor who can do a thorough assessment. However, it’s often best to simply discuss your estate plan with your adult children and other close loved ones. You don’t have to give them details, but you should address anything that might be an unwelcome surprise. Let them know what your thought process was so they’re less likely to question it later.
You should at least do this with your chosen executor. Having an experienced estate planning professional can also help your loved ones feel confident that you knew what you were doing when you put your plan in place.