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Lack of capacity

Lack of capacity

Overview

When signing a will, a Testator must have testamentary capacity. This means that the Testator must be of sound mind and at least 18 years old. Additionally, an emancipated minor may make a will. The Testator must also intend the document to operate as his/her will. The Testator must generally understand the nature and extent of the property/assets to be disposed of in the will. The Testator must understand to whom he/she is disposing property/assets and intend to do so. Finally, the Testator must generally understand what the overall will states. Testamentary capacity must be determined at the exact moment that the will is being executed. If contesting a will based on testamentary capacity, the contestant must prove that the Testator lacked capacity upon signing. Generally, attorneys will make record that the Testator had capacity upon signing.