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Encyclopedia > Testamentary capacity
The law of wills and trusts
Part of a series on the common law
Inheritence
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Types of will
Holographic will  · Joint will
Mutual will  · Will contract
Parts of a will
Codicil  · Attestation clause
Incorporation by reference
Residuary clause
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Contesting a will
Testamentary capacity  · Undue influence
Trusts
Pour-over will  · Spendthrift trust
Charitable trust  · Cy pres doctrine
Resulting trust  · Constructive trust
Honorary trust
Other areas of the common law
Contract law  · Tort law  · Property law
Criminal law  · Evidence
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In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make a valid will. Image File history File links Legal portal image File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ... Corruption Jurisprudence Philosophy of law Law (principle) List of legal abbreviations Legal code Intent Letter versus Spirit Natural Justice Natural law Religious law Witness intimidation Legal research External links Wikibooks Wikiversity has more about this subject: School of Law Look up law in Wiktionary, the free dictionary Law, Legal Definitions... In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Intestacy refers to the body of common law that determines who is entitled to the property of a dead person in the absence of a last will and testament or other binding declaration. ... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons family and/or property after death. ... Probate is the legal process of settling a dead persons estate: specifically, distributing the decedents property. ... A power of appointment is a term most frequently used in the law of wills to describe the ability of the testator (the person writing the will) to select a person who will be given the authority to dispose of certain property under the will. ... Simultaneous death is a problem of inheritence which occurs when two people (usually a husband and wife) die at the same time in an accident. ... The slayer rule, in the common law of inheritance, is a doctrine that prohibits inheritence by a person who murders someone from whom they stand to inherit. ... Disclaimer of interest (also called a renunciation), in the law of inheritance, wills and trusts, is a term that describes an attempt by a person to renounce their legal right to benefit from an inheritance (either under a will or through intestacy) or through a trust. ... In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... A holographic will is an unwitnessed will and testament written by the testator personally, rather than being prepared by a lawyer, another person acting on the testators behalf, or from a pre-printed form. ... In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... Codicil can refer to: An addition made to a will Any addition or appendix, such as a corollary to a theorem A poem by Derek Walcott This is a disambiguation page — a navigational aid which lists other pages that might otherwise share the same title. ... In the statutory law of wills and trusts, an attestation clause is a clause that is typically appended to a will, often just below the place of the testators signature. ... Incorporation by reference is a doctrine of the common law of wills by which a person may state in his will that certain property is to be disposed of by a seperate document, describing the place where the document will be found. ... A residuary estate, in the law of wills, is any portion of the testators estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. ... Lapse and anti-lapse are complementary concepts under the law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will). ... Ademption is a term used in the law of wills to determine what happens when property bequested under a will is no longer in the testators estate when the testator dies. ... Abatement (derived through the French abattre, from the Late Latin battere, to beat), a beating down or diminishing or doing away with; a term used especially in various legal phrases. ... The doctrine of acts of independent significance, in the common law of wills, permits the testator to effectively change the disposition of her property without changed her will, if acts or events with relation to the property itself have some significance beyond avoiding the requirements of the will. ... An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedents will. ... A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know or did not know of the party at the time the will... A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). ... Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ... In common law legal systems, a trust is a relationship in which a person or entity (the trustee) has legal control over certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of someone else (the beneficiary... A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his death shall be placed in the trust. ... A spendthrift trust is a trust that is created for the benefit of a person who is in debt (often because they are unable to control their spending) that gives an independent trustee full authority to make decisions as to how the trust funds may be spent for the benefit... A charitable trust is a trust organized to serve private or public charitable purposes. ... The cy pres doctrine (pronounced as see-pray) is doctrine of the Court of equity. ... In common law legal systems, a trust is a relationship in which a person or entity (the trustee) has legal control over certain property (the trust property or trust corpus), but is bound by fiduciary duty to exercise that legal control for the benefit of someone else (the beneficiary), according... A constructive trust is a legal device used by courts sitting in equity to resolve claims raised by a plaintiff whose property has been converted to a profitable use by the defendant. ... An honorary trust, under the law of trusts, is a device by which a person establishes a trust for which there is neither a charitable purpose, nor a private beneficiary to enforce the trust. ... A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... Property law is the law that governs the various forms of ownership in real property (land as distinct from personal or moveable possessions) and in personal property, within the common law legal system. ... Criminal law (also known as penal law) is the body of law that punishes criminals for committing offences against the state. ... The law of evidence governs the use of testimony (eg. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Corruption Jurisprudence Philosophy of law Law (principle) List of legal abbreviations Legal code Intent Letter versus Spirit Natural Justice Natural law Religious law Witness intimidation Legal research External links Wikibooks Wikiversity has more about this subject: School of Law Look up law in Wiktionary, the free dictionary Law, Legal Definitions... Jargon redirects here. ... In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ...

Contents


Adults are presumed capable

Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions. In law, a person who is not yet a legal adult is known as a minor (known in some places as an infant or juvenile). ... A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ...


Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or some similar unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know what he was doing when he executed the will. In common law, a rebuttable presumption is an assumption that is made that will stand as a fact unless someone comes forward to contest it and prove otherwise. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons family and/or property after death. ... Dementia (from Latin demens) is progressive decline in cognitive function due to damage or disease in the brain beyond what might be expected from normal aging. ... Insanity (sometimes, madness) is a semi-permanent severe disorder of the mind, typically as a result of mental illness. ...


The testator must have known what he was doing

The test is quite lenient. Some courts have held that a person who lacked the capacity to make a contract can nevertheless make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of: Capacity is a legal term that refers to the ability of persons to make certain binding dispositions of their rights, such as entering into contracts, making gifts, or writing a valid will. ... A contract is any legally-enforceable promise or set of promises made by one party to another and, as such, reflects the policies represented by freedom of contract. ...

  1. the extent and value of his property;
  2. those who are the natural objects of his bounty; and
  3. their deserts, with respect to their treatment of and conduct toward him.

In other words, the testator had to know what he owned, who his family members were, and how they treated him in life. The legal test also implies who the typical litigant in a will contest will be: disgruntled heirs who believe they should have received a larger share of the estate than what they received under the will. Those who would bring such a challenge to a validly executed will bear the burden of proof that the testator lacked this ability. A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). ... For other uses, see inheritance (disambiguation). ... Burden of proof is the obligation to prove allegations which are presented in a legal action. ...


Insane delusions

Litigants who challenge a will sometimes allege that the testator laboured under an "insane delusion" or monomania that rendered them incapable of judging rationally the deserts of their presumed heirs; one court has defined "insane delusions" as "those that are so contrary to human nature that it would lead to the inference that some mental defect existed." In psychiatry, monomania (from Greek monos, one, and mania, mania) is a type of paranoia in which the patient has only one idea or type of ideas. ...


This test is also lenient. In the 1854 case of Addington v. Wilson, the Supreme Court of Indiana held that a testator who disinherited his daughters because he believed them to be witches was not for that reason alone so insane as to deem them incapable of making a valid will. The court justified its decision by pointing to distinguished jurists and religious figures who affirmed the possibility of witchcraft; if these people's beliefs did not render them insane, neither did the testator's. 1854 was a common year starting on Sunday (see link for calendar). ... State nickname: The Hoosier State Other U.S. States Capital Indianapolis Largest city Indianapolis Governor Mitch Daniels (R) Official languages English Area 94,321 km² (38th)  - Land 92,897 km²  - Water 1,424 km² (1. ... This article is part of the Witchcraft series. ... The term witchcraft (and witch) is a controversial one with a complicated history. ...


Proof of testamentary capacity

Those who would challenge a will for lack of testamentary capacity must typically show that the decedent suffered from some sort of mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. Dead man's statutes sometimes restrict evidence which can be admitted concerning transactions with the decedent. The law of evidence governs the use of testimony (eg. ...


Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be video taped. On video, they will ask the testator about his property and about his family, and go over the contents of the testator's will, to create a record that the testator met the qualifications. A lawyer is a person licensed by the state to advise clients in legal matters and represent them in courts of law (and in other forms of dispute resolution). ...


References

  • Addington v. Wilson, 5 Blackf. (Ind.) 137, 61 Am.Dec. 81 (Sup. Ct. Ind. 1854)
  • Allman v. Malsbury, 224 Ind. 177, 65 N.E.2d 106 (Sup. Ct. Ind. 1946)
  • Hays v. Harmon, 809 N.E.2d 460 (Ind. Ct. App., 2004)

  Results from FactBites:
 
Assessing testamentary capacity - Australian Medical Association, Victoria (1374 words)
The testamentary capacity of a testator is not always apparent to non-medically trained legal professionals, and hence the need for an expert opinion on the testamentary capacity of a testator.
Assessing a testator's testamentary capacity in a single interview can be problematic, in that it exposes a medical practitioner to the risk that mental incapacity is not apparent because a lucid moment coincides with the practitioner's interview.
While multiple consultations to assess testamentary capacity may not always be possible, practitioners should be aware of the risks of assessing capacity in a single interview.
  More results at FactBites »

 
 

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