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What is Testamentary Capacity?

“Hi. I’m Kent Berk. I’m an attorney at the Scottsdale, Arizona law firm of Berk Law Group where we handle probate, trust, estate, and other types of cases here in Arizona. Oftentimes we handle disputes involving the validity of a will or a trust, and there’s many different issues that might come up in a will or a trust contest case.

One of them is testamentary capacity. It’s “Did the person have a sound mind to be able to legally adopt a valid will or a trust?” Testamentary capacity in Arizona has three elements. The first element is the person who adopted the will or the trust must know the nature and extent of their assets.

That doesn’t necessarily mean that they needed to know their Chase Bank account balance as of a given point in time, but it means that they must generally know the nature and extent of their assets that they are disposing of or distributing under their will or their trust.

The second element is the person must know the natural objects of their bounty. Did they know their family members, their close friends, the people that they would logically want to leave something to in their will or their trust?

The third element is that they need to understand the nature and effect of the testamentary disposition. Did they understand what the will provides and what would happen to their assets upon their death?

If all three of those elements are satisfied as of the time that the will or trust is adopted, then the person would be deemed to have testamentary capacity, and the will or the trust would be valid on that ground.

Assuming that there’s no other grounds to invalidate the document, then the will would be admitted to probate, and then, the personal representative would be appointed to administer the estate and make disposition according to the will, or the trustee would administer the trust estate according to the provisions of the trust.

There is another sort of nuance involved in questions of testamentary capacity, and that is called a “lucid interval.” Let’s say you have a person who just generally suffers from dementia or Alzheimer’s and they generally have memory problems or whatever. Because the question of testamentary capacity is determined as of the precise moment that the instrument is signed, if it can be established that they had a lucid interval let’s say that there were some medications that the person was put on to where they were able to understand those three elements then the will or the trust could be deemed valid even though the person, in general, had delusions or dementia or whatever other medical problems.

If you have any questions regarding the validity of a will or a trust, please don’t hesitate to give us a call. Thank you.”