The Estate Planning Attorney's Role in Establishing Testamentary Capacity
Although estate planning attorneys cannot be expected to be physicians capable of diagnosing medical conditions, they do need to look for signs of diminished capacity among older clients.
March 26, 2020 at 01:30 PM
10 minute read
Whether a decedent had sufficient testamentary capacity to make a will arises frequently in trusts and estates practice. Was the decedent of "sound mind" with the necessary mental ability to understand and execute a will? If not, the will will be invalid and either a previously revoked will will be revived or the intestacy law will apply.
Aging Population and Prevalence of Dementia
By 2034, people age 65 and older will outnumber children for the first time in U.S. history. See www.census.gov. As people live longer and the population ages, it can be expected that the frequency of will contests alleging age-related diminished capacity will increase.
Dementia cases continue to grow. As one commentator noted, "A diagnosis of dementia is a reality becoming all too familiar in recent years." Law, Anderson and Frederick, "Diminished Capacity," 46 Estate Planning 22 (July 2019). According to Braintest.com, as of 2015, 7.7 million new cases of dementia are diagnosed world-wide each year, and 47.5 million people are living with dementia. In the U.S., it is estimated that one out of every six women and one out of every 10 men over age 55 will develop dementia. Of these, 70% have Alzheimer's disease. See www.nia.nih.gov/health/alzheimers/basics.
In New Jersey, there were an estimated 180,000 people living with Alzheimer's disease in 2018. This is expected to increase to 190,000 in 2020, and 210,000 in 2025. In 2015, 2,260 New Jersey residents died from Alzheimer's disease, and it was the sixth leading cause of death. See www.alz.org/facts.
Factors for Testamentary Capacity
Although there is no universal definition of testamentary capacity, it is a much lower threshold than for other legal documents such as contracts. As the court stated in In re Rasnick, 77 N.J. Super. 380 (1962), "As a general principle, the law requires only a very low degree of mental capacity for one executing a will." Factors relevant to testamentary capacity are:
- Whether the testator understood and intended to create a will;
- Whether the testator generally knew the nature and extent of his or her assets;
- Whether the testator intended to pass assets under his or her will;
- Can the testator identify the beneficiaries under the will and understand his or her relationship to them?; and
- Did the testator know the "natural objects of his or her bounty," i.e., immediate family who would inherit if there was no will?
In Gellert v. Livingston, 5 N.J. 65 (1950), the court stated that, "The gauge of testamentary capacity is whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others; and the distribution that is made by the will."
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