Law Of Testamentary Capacity

The capacity to make an effective will is a frequent subject of newspaper headlines both when a great deal of money is involved and when an unusual beneficiary is named. The family of an Alzheimer patient should consider obtaining a will when there is any type of estate, whether in the form of real or personal property, that would, under ordinary circumstances, pass to heirs. The life expectancy of an Alzheimer patient is much nshorter than for healthy persons of the same age. If there is not already a will, the family should obtain one as early as possible. Obtaining a properly executed will may preclude some of the disputes among potential heirs nwhich might otherwise occur.

Elements of Testamentary Capacity

The law of testamentary capacity is fairly straightforward with four elements that must be present. First, the person making the will, the testator, must have an understanding of the nature and extent of the property to be bequeathed. Second, the testator must be able to formulate a reasonable plan for the distribution of the property. Third, he must be able to understand the relationship between himself and the natural objects of his nbounty, that is, those individuals who would ordinarily be in the mind of a person making a will. Fourth, the testator must be able to keep all these elements in mind at the time of execution of the will.

Adults are presumed to be capable of making a will unless proven otherwise. It must be shown by the person contesting a will that one or more of the required elements was missing or that some other factor was present thus rendering the will invalid. Perfect sanity is not required. Even an individual who was legally insane might be able to make a valid will if the four elements are present when the will was prepared. An individual who has been diagnosed as having Alzheimer's disease might still be capable of making a will during lucid periods when all the elements for testamentary competency are in mind at the same time. As with most diseases, the symptoms of Alzheimer's wax and wane in expression. The family should use those moments of lucidity to the patient's advantage by having a will executed.