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Testamentary Capacity

Estate Planning Attorney Helping Clients in and Around Nashville

Simply put, “testamentary capacity” refers to the issue of whether or not a person making out his or her last will and testament has the legal and mental capacity to do so. If a testator (a person making out a will) does not have testamentary capacity, his or her will may be declared void. If this happens, the testator’s property will not necessarily be passed to heirs in the way set forth in the will. It is possible that an earlier will might still be in effect, but most likely, any prior documents would have different terms, or the testator may not have signed any other will. In this case, the testator’s property will pass according to the law of intestate succession set forth by the legislature via statute. If you have questions pertaining to testamentary capacity or other issues related to wills or trusts, an experienced Nashville estate planning lawyer at the Randy Ratliff Law Offices may be able to help.

While death is inevitable, not everyone takes the time to make an appropriate estate plan. This can put those left behind in a very difficult situation, and it can cause needless waste in the form of taxes that could have been avoided through the use of certain estate planning tools, not to mention legal fees if there is a protracted legal battle about an issue such as the testamentary capacity of a testator who waited until an advanced age or until they were in a compromised mental state to sign a will. Unfortunately, some people put off the task of planning for their estate, thinking that they still have plenty of time to do such a thing. Time moves quickly, however, and it is not uncommon for an older person, or even a younger person who is suffering from an illness, to wait too long to talk to an attorney about writing a will, thereby opening to the door to a will contest based on lack of capacity.

The Importance of Capacity to Make a Legal Will

A last will and testament if valid only if the person signing the will has testamentary capacity. Generally speaking, this means that the person must have the legal ability to enter into a binding contract. In order to qualify, the testator must be aware of the nature and approximate value of his or her assets, know the identity of those individuals who would be natural objects of his or her bounty (i.e. obvious beneficiaries such as a spouse, children, or other heirs), understand the disposition of property set forth in the will, and be able to comprehend how the last will and testament relates to any other estate planning measures that he or she has in place or is entering into along with the will.

While it is not strictly necessary to consult an attorney in order to make out a will, one of the most important reasons to do so is so that a qualified professional can make a determination regarding the testamentary capacity of the person making out the will. When a will is simply downloaded from the internet or copied out of a book from the local library, there can be disputes among heirs later on as to whether the testator truly had the legal capacity to sign a document of such a significant nature. Additionally, signing a will requires a certain amount of procedure and ceremony, which is easily handled by a law office accustomed to such matters, but which can be a taunting task to those who do not regularly engage in such things. If a will is later determined to be void due to lack of testamentary capacity, a costly and bitter legal battle may ensue, and the testator’s wishes – especially those that vary from the rules of intestate succession - may not be carried out.

Discuss Your Estate Plan With an Experienced Nashville Lawyer

If you do not have a current estate plan in place, the time to do so is now, not next year or the year after that. Waiting too long is a significant risk, so it is important to take appropriate measures in a timely fashion. Attorney Randy Ratliff appreciates the opportunity to serve those in areas including Nashville, Antioch, Madison, Goodlettsville, Hermitage, Franklin, Brentwood, Joelton, Cool Springs, and throughout Davidson and Williamson Counties as they go about the important process of providing for their loved ones’ future needs through an effective and well-considered estate plan. Call us at 615-656-8282 or contact us online to schedule an appointment to get started on your last will and testament, living will, trust document, or other estate planning needs.