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Testamentary Capacity

Testamentary capacity is the mental state that is legally required for someone to adopt a valid last will and testament or trust. This is commonly referred to as being of “sound mind.”

Arizona courts have further explained the standard for mental capacity to adopt a will or trust by holding that a person has sufficient testamentary capacity if he/she is merely capable of:

  1. understanding that the instrument disposes of his/her property at death;
  2. knowing the general nature and character of his/her property; and
  3. knowing the natural objects of his/her bounty (i.e. the family members that logically would inherit his property) and understanding the relationship to them.

There is a basic presumption that everyone over 18 years old has capacity to make a will or trust.  Thus, in order to set aside a will or trust on the ground of testamentary incapacity, the contestant (person attacking or trying to set-aside the document) is required to show that the will or trust was a product of permanent insanity or insane delusions that were of the nature and were severe enough to where:

  • He or she did not know and understand the nature of the document: for example, the person did not know he/she was signing a will that would transfer his/her property at death;
  • He or she did not know the nature and extent of his/her property: the person did not know what property and assets he/she owned or how much money he/she had; and
  • He or she did not know the natural objects of his/her bounty at the time that the will was executed: he/she did not know who his/her family was.

The person’s mental state is evaluated as of the time that the document in question was signed.

Not every mental departure from normal will destroy a testamentary disposition (a will or trust) that is otherwise valid. Thus, even assuming that the person was suffering from a deteriorating mental condition, or that his/her old age was accompanied by physical infirmities, poor memory or mental slowness (i.e. mild underlying dementia), this is generally not legally sufficient to show lack of testamentary capacity.

For example, in Estate of Green, the Arizona Supreme Court explained the nature of the mental condition necessary for incapacity as follows:

Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) [i]nsanity of such broad character as to establish mental incompetency generally; or (2) some specific narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim of some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion . . .

In the Estate of Killen case, the Court further explained that “Arizona law recognizes that mental illness can render a person incapable of making a valid will if the insanity is so broad as to produce general mental incompetence or a form of insanity that causes hallucinations or delusions. To invalidate a will, however, the will must be a product of the hallucinations or delusions; in other words, the hallucinations or delusions must have influenced the creation and terms of the will such that the testator devised his property in a way that he would not have done except for the delusions.”   So, if the person has a mental illness that prevents him/her from understanding his/her relationships and/or property and the deficiency affected the terms of the will or trust, the document would be invalid.

Since the validity of the will or trust is analyzed as of the time that it was signed, it is often important to look back in time.  Typically, it will be important to obtain copies of medical and mental health records for the period leading to and around the time that the questioned will or trust was signed.  It is also usually helpful to interview witnesses who dealt with the person at the time that the questioned document was signed.  Often, it is important to have a neuropsychologist review the medical records, and perhaps interview witnesses, in order to ascertain whether the person had capacity at the relevant time.

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Please contact our experienced probate attorneys if you have a will contest or have any questions regarding the validity of a trust, will or amendment, including whether the person had testamentary capacity.