Who has the CAPACITY to make a will?

Probate Courts deal daily with the issue of “capacity.” When handling Conservatorship and Guardianship cases, they determine whether or not people have the capacity to manage their own affairs. When handling disputes over someone’s last will, they are often asked to determine whether or not someone had the legal capacity to make a will in the first place. So, what exactly is capacity?

Capacity is someone’s ability or power to do, experience or understand something. That being said, this ability changes based on the question at hand. For example, the level of capacity necessary to enter into a contract is higher than the capacity to make a will. In any capacity question, it’s not enough just to ensure the person is of legal age and sound mind; you must have more information.

In South Carolina, the capacity needed to write a will is a lower standard than the capacity to enter into other agreements such as a contract. A Testator (the person making the will) must be of “sound mind” and age 18 (although some exceptions apply to that requirement when executing the will). Further, in order to prove someone has the capacity to make a will, they only have to show the following:

1. The Testator has a general understanding of his or her estate assets;

2. The Testator knows the natural objects of his affections (those who would normally receive his/her assets); and

3. The Testator knows to whom he or she wishes to leave his/her assets to through the estate.

In general, this is a rather low standard. It’s also important to remember that having dementia, Alzheimer’s or another know mental illness does not preclude someone from meeting this standard. A drug addict can be of sound mind and have capacity so long as they are not under the influence at the time of signing the will. Similarly, people who are eccentric do not necessarily lack capacity. For example, in certain situations leaving your entire estate to your dog may be sane, even if unusual.

If you or a loved one wishes to make a will but is unsure if you have the capacity to do so, it’s always best to consult an attorney. Qualified estate attorneys are trained to interview a client for capacity before drafting the documents and at the time of the execution. Having an attorney involved provides an extra layer of protection down the road should an non-inheriting family member wish to contest the document.

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2 Responses to Who has the CAPACITY to make a will?

  1. olga decker says:

    When my husband made a will in favor of his half sister (we were married for 23 years) he was a bipolar, alcoholic and smoke marijuana everyday, depress seeing a mental doctor for years, does it makes his will right?

  2. Thanks for the comment. In order to determine if someone had the mental capacity to make a will, you will need more details including who the witnesses were, whether or not he was under the influence of drugs or alcohol at the time of the execution of the will and related information. Someone can use drugs or be diagnosed as mentally ill but still be competent to make a will.

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