Testamentary capacity
Testamentary capacity is the mental awareness a testator has when signing a will. New York practitioner commentary and a Florida definition describe it through the testator's understanding of the will and of their property. The term applies to owners of businesses, real estate and private investments who sign wills, and to the spouses and adult children who may read those wills.
How it works
New York practitioners describe testamentary capacity as the testator knowing the document is a will governing disposition of the estate.
A commonly used Florida definition of testamentary competence is the ability to understand generally the practical effect of a will, the nature and extent of one's property, and the natural objects of one's bounty.
Where it shows up for owners of businesses, real estate and private investments
Estate planning practitioners describe general awareness of the testator's assets, property holdings, and accounts as part of testamentary capacity. An owner's business interests, real estate and private investment accounts are the kinds of holdings that awareness addresses.
An owner who holds an operating company, rental properties and brokerage or partnership accounts has a varied set of holdings. Awareness of assets, property holdings, and accounts is the part of the commentary that speaks to a varied set of holdings like these.
Points that are easy to confuse
Age and illness are different from incapacity in Florida. A Florida holding states that a person is not incompetent because of being elderly, physically frail, sick, or having failing memory and vacillating judgment.
Testamentary capacity and the capacity to handle other legal matters are separate ideas in the New York commentary. Practitioners place testamentary capacity at a different level from other capacity standards.
Common questions
When is testamentary capacity assessed in New York?
New York courts assess testamentary capacity at signing. Practitioners note that a will may remain valid if it was signed during a lucid interval, even when the testator has dementia or intermittent confusion.
How do New York practitioners describe the level of testamentary capacity?
Practitioners regard testamentary capacity as a lower standard than other capacity standards. The same practitioners describe the person signing a will as someone who knows the nature and extent of their assets.