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What Is Lack of Testamentary Capacity?

 Posted on July 08, 2021 in Estate Planning Blog

IL estate planning lawyerWhen someone is planning their estate in Illinois, several factors must be present in order for a will to be considered valid in a probate court. One important factor is the testamentary capacity of the person executing the will (also known as the “testator”).

Illinois law presumes a person who is writing a will possesses testamentary capacity. This means that if someone wants to prove a will is invalid due to lack of testamentary capacity, they have to proactively demonstrate that the testator was not capable of understanding or writing the will during the time in which the will was written.

Here, we’ll look at the definition of testamentary capacity, and several factors that may contribute towards a lack of testamentary capacity.

What Is Testamentary Capacity?

Simply put, testamentary capacity is the mental capability of a person to write, or change, a will. In Illinois, the testator must be at least 18 years old, and of “sound mind and memory” in order to be considered capable of testamentary capacity.

The testator must know and understand the value of their assets, know and remember their family members and their relationship to them, and be able to create a plan for the distribution of assets upon the testator’s death.

What Can Affect Testamentary Capacity?

The following issues could result in the testator's will being contested:

  • Cognitive Impairment – Not all cognitive impairment means testamentary capacity is affected. A diagnosis of Asperger’s Syndrome would likely not affect a testator writing a will, whereas a diagnosis of Alzheimer’s Disease probably would. A probate court will consider factors such as the type and severity of any cognitive impairments and their impact on the testator.
  • Having a Court-Appointed Guardian – Sometimes, cognitive impairment will be so severe that a testator will have a guardian appointed to them by the court. Any will written after a guardian is appointed is presumed to be void, and overcoming this presumption is very challenging.
  • Undue Influence – In past blog posts, we have discussed the topic of undue influence at greater length. Essentially, undue influence is when somebody exerts manipulative control over the testator in a way that unnaturally influences the allocation of assets towards themselves.

Consult a Lombard Estate Planning Attorney

Proving lack of testamentary capacity can be difficult and complex. If you are going to contest a will, having an experienced DuPage County probate attorney representing you will make a difference in the success of your case. Contact A. Traub & Associates today at 630-426-0196 for a confidential consultation.




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