When it comes to creating a will, a critical factor is sometimes overlooked: mental capacity.  You might assume that as long as someone puts their wishes on paper and signs it, their will is valid, but that’s not always the case.  Courts take mental capacity very seriously, and for good reason.  Establishing capacity ensures that your wishes are honored, your loved ones are protected, and disputes are minimized.  Let’s explore what it means to have capacity, the challenges of proving it, and how careful planning can save your family from future difficulties.

 

Why Does Capacity Matter for a Will?

Before a will is created or accepted by a court after someone’s death, it must be clear that the person making the will had the mental capacity to do so.  Mental capacity essentially refers to the legal ability to understand and sign a valid will.  This ensures that the individual was of sound mind and free from coercion, so their true wishes are respected, and their family is provided for as they intended.  This is important because, if someone lacked the ability to understand what they were doing there is no way we could be sure their will actually reflects their wishes.

Legal Standards for Mental Capacity in Tennessee

Under Tennessee law anyone who is at least 18 years old and of sound mind can create a valid will.  But what does “sound mind” actually mean? Courts look for two main things:

1. The person understands the effect and what it means to create a will.
2. They have a clear sense of the property they own.

Interestingly, the bar for capacity is relatively low.  Even someone who can no longer legally sign contracts or conduct general business for themselves might still meet this standard for making a valid will.

 

Challenges in Proving Capacity

When a person passes away, their will goes through probate court, where a judge oversees the process of distributing their assets.  One of the first steps in this process is proving that the person had the mental capacity to create a valid will at the time it was signed.

Unfortunately, proving capacity can be challenging—especially if the will was signed years earlier.  Evidence such as medical records, expert testimony, or witness statements might be required.  Even then, disputes over capacity can turn into lengthy and expensive legal battles.  Courts must take these matters seriously in order to protect families from wills created under fraud, coercion, or undue influence, but it can be difficult to sort out these issues after the fact.

How to Prevent Capacity Disputes: Self-Proving Affidavits

Luckily, there are steps you can take now to avoid these headaches later.  One of the most effective tools is a self-proving affidavit.  When you sign your will, two witnesses must also sign it to confirm its validity.  A self-proving affidavit goes one step further. It’s a written statement, signed by your witnesses, typically at the same time as the will, affirming that they saw you sign the document and believe you were of sound mind.  This affidavit is attached to your will and serves as automatic proof in probate court, making it much more difficult for anyone to contest.

 

What Happens When Capacity Is Lacking?

If someone no longer has the mental capacity required to create a will due to dementia or another condition a conservatorship may be necessary.  In this process, a concerned family member or friend asks the court to appoint them as a legal conservator.  If granted, the conservator can then make decisions on the person’s behalf, including decisions about their estate.  However, this process, often referred to as “living probate,” can be costly, time-consuming, and emotionally draining.  That’s why it’s so important to create your comprehensive estate plan well before capacity becomes an issue.

 

Planning Ahead for Peace of Mind

The best way to avoid these challenges is to create a comprehensive estate plan with the help of a qualified attorney.  A comprehensive legal plan goes beyond just a will and typically also includes tools like: a Durable Power of Attorney (to name someone you trust to manage your financial affairs if you’re incapacitated); an Advance Directive for Health Care (to outline your medical wishes and name someone to make other medical decisions for you); and possibly a Revocable Living Trust (to allow someone to manage your assets, avoid probate court, and simplify the transfer of assets).  These documents ensure that your wishes are followed, and your loved ones are spared unnecessary stress.

Choosing who to name in these roles is a big decision.  You might want to discuss it with your family to ensure everyone is on the same page.  And even if you don’t involve your family in these decisions, it’s important to inform the people you do choose so they know what’s expected of them.

Ensuring capacity for a will protects your wishes and your family’s future.  By taking proactive steps, like creating a comprehensive estate plan with a self-proving affidavit, you can avoid unnecessary conflicts and provide peace of mind.  Contact our offices and schedule a call with me by clicking the link below.