When Does Someone Have the Capacity to Execute a Will?

 Posted on August 21, 2017 in Estate Planning

If you are concerned that the will of a loved one or family member was signed under suspicious circumstances, it may be possible to challenge the will in court. There are several grounds on which to do this, but one common concern is the capacity of the testator (the person who signed the will) at the time the will was executed.

This can be a difficult case to make, and most of the time these assertions are highly fact-specific, meaning there will be testimony of witnesses and a required review of property and financial documents. Medical records may also come into play.

Lack of capacity is especially common as people are living longer yet may not have all their mental faculties intact. Many attorneys predict that this issue will become more prevalent in the future.

Capacity Inquiry

Wisconsin law provides that “[a]ny person of sound mind 18 years of age or older may make” a will. There is a presumption that the testator has the requisite capacity to sign a will, although this presumption can be challenged.

Generally, the testator must be able to comprehend the nature, extent, and state of affairs of his or her property at the time the will was signed. A will may still be upheld if a testator does not know the exact value of his or her property or have a detailed itemization of every asset.

Another inquiry into the testator’s capacity involves his or her knowledge of the beneficiaries and an understanding of what the provisions of his or her will mean practically. The testator must be able to understand and think about all elements of his or her will for a sufficient length of time without guidance to form a rational judgment—the result of which is expressed in the will.

Capacity Also Required for Revocation

Sometimes a person who does not have capacity attempts to destroy an existing will. It may be the case that the testator wants to substitute a new will, or it may be the case that he or she does not want the initial will to be followed.

In any event, the testator must have the same capacity to revoke an existing will as is required to execute a will.

Contact a Milwaukee, WI, Estate and Probate Lawyer

The knowledgeable Milwaukee estate law attorneys at Gimbel, Reilly, Guerin & Brown, LLP will be able to review the facts of your case, including the will and the circumstances around its execution, to determine what legal actions may be feasible. Our attorneys are also skilled at anticipating arguments that may be asserted against you in court in developing counter arguments.

Call us at 414-271-1440 to schedule your first meeting today.

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/853

http://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=89&Issue=8&ArticleID=25061