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What Is Testamentary Capacity?


One of the most important requirements that a person must possess when creating or amending a will in Massachusetts is that they have testamentary capacity, or the legal mental capacity to perform this task. When it comes to will contests during the probate process, a lack of testamentary capacity is one of the most common challenges, especially when a loved one made or edited a will in their twilight years when cognitive decline is more prevalent. At Fisher Law, our experienced Norwood estate planning lawyers are here to help if you have concerns about testamentary capacity for you or a loved one. To learn more, call or contact our office today to schedule a consultation.

Defining Testamentary Capacity 

In Massachusetts, the law specifically defines what it takes to possess the testamentary capacity to create or amend a final will and testament. A person has testamentary capacity if they:

  • Understand the extent of their property,
  • Understand which people are their natural heirs, and
  • The consequences of signing a will.

In layperson terms, this means that in order to possess testamentary capacity, a person must understand what they have to give away in their estate, who their close family members are, and that signing a will dictates who will get the things that they have to give away.

It is important to note that a person must only possess testamentary capacity at the moment that they sign the will. This is often an important distinction, particularly when a loved one is suffering from cognitive impairment issues such as Alzheimer’s Disease or dementia when they still have lucid moments. If you have concerns about a challenge to a loved one’s testamentary capacity, there are steps that you can take.

Confirming Testamentary Capacity 

If someone challenges a will based on a lack of testamentary capacity, there are steps that can be taken beforehand to prove that someone had the testamentary capacity to create or amend a will at the time that the document was signed. It is the onus of the person making the challenge to prove that someone lacked testamentary capacity, not the other way around. One of the best steps to take is to have a doctor present to examine a person on the day that they sign their will. Oftentimes, there is contemporaneous medical documentation along with the testimony of the physician to confirm that a person possessed the capacity to sign a will on the date that it occurred. Another step to take is to have the estate planning lawyer meet privately with the person signing the will, even if others came with to the attorney’s office. This gives the lawyer a chance to assess their client’s testamentary capacity and can provide additional testimony if needed to prove that testamentary capacity was present when the will was signed. To learn more, talk to our office today.

Talk to Our Office 

Do you have more questions about testamentary capacity in Massachusetts? If so, the experienced and qualified estate planning and probate lawyers at Fisher Law can help. Call or contact us today to schedule a consultation.



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