What is the testamentary capacity to create a will?

On Behalf of | Nov 3, 2022 | Estate Planning |

Everyone should create a will. This estate planning tool articulates your wishes regarding how you would want your hard-earned to be distributed when you pass on. Without a will, California intestacy laws will make this decision for you – and that may not be close to what you want. 

However, one of the fundamental requirements you need to create a valid will is the right state of mind. This is known as the testamentary capacity. Without the testamentary capacity, someone could challenge and possibly invalidate your will. 

Understanding testamentary capacity

Generally, this refers to your mental ability to independently create a will that reflects your wishes. You cannot make a will if you do not meet this threshold. It is not uncommon for an individual to lose their testamentary capacity temporarily. This can happen when they fall into a coma and regain consciousness later. As such, your testamentary capacity is assessed at the time of creating and signing your will. 

Here are four elements that you must meet to establish a testamentary capacity to create a will.

  1. You must understand the nature and implications of your will
  2. You must understand the extent of the property you are apportioning to your heirs
  3. You must be able to comprehend any concerns someone might have against your will 
  4. You must be free from any unusual state of mind (such as delusion) that might distort your judgment while creating the will.

According to California laws, most individuals over the age of 18 are presumed to have the mental capacity to create a will. However, if you display a mental condition that impacts your decision-making ability, then your testamentary capacity can be questioned.

If you get it right, a will can give you peace of mind knowing that your legacy and loved one’s futures are secured. Find out how you can create a will that reflects your wishes.