Required Mental Capacity to Make a Will

A will is often the easiest way to ensure that your property is disposed of in accordance with your wishes after death. Not everyone, however, may draft a will. To form a valid will, the testator must have the legal capacity to form a will.

To have the proper capacity, the testator must have the necessary mental capacity to make the will and must not make the will as a result of undue influence, fraud, or duress. In this post, I will discuss the necessary mental capacity for forming a will, while I will discuss the other requirements in a subsequent post.

Elements of the Required Mental Capacity to Make a Will

To have the necessary mental capacity, the testator must first have legal capacity, meaning that he or she must be old enough to make a will—that is, 18 years old or married.

Second, the testator must be capable of knowing:

1. The nature and extent of his or her property;
2. The natural objects of his or her bounty—a legal phrase meaning the knowledge of the identity of the testator’s family members. He or she must appreciate the identity of the family members that would take under intestate succession;
3. The disposition that he or she is making through the will; and
4. The testator must be capable of knowing all three items simultaneously.

The Test of Mental Capacity

Arkansas presumes that the testator has the necessary mental capacity to make a will, which means that the evidentiary burden is on those seeking to demonstrate that the testator lacked such mental capacity.

It is worth noting, however, that a minority of jurisdictions shifts the burden of proof to those seeking to demonstrate mental capacity once evidence has been introduced that the testator lacked the necessary capacity. Once such evidence is introduced, the proponent of the will must then produce evidence that the testator was indeed mentally competent to make the will.

As an interesting aside, Arkansas allows what is called ante-mortem probate proceedings. This is a process that occurs prior to the death of the testator. Under this model, after notice is provided to all interested parties, a court evaluates the mental capacity of the testator before his or her death.

Since the testator is still alive, the court is able to see the testator in person and evaluate his or her mental capacity. This helps avoids lengthy and expensive will contests.

Insane Delusion

A testator suffering from an insane delusion often does not have the necessary mental capacity to draft a will. A testator suffers from insane delusions when he or she holds a false conception of reality. The insane delusion only affects the ability of the testator to make a will if it actually affects the disposition of property.

So, if the testator’s will simply states, “all to my wife, and if she predeceases me, to my children,” it is likely that the will would nonetheless be held valid, even if drafted while the testator was suffering from an insane delusion, because it does not appear that the insane delusion affected the disposition of the property.

If, however, the will states, “nothing to my son Ron because of his involvement with the CIA and his repeated attempts to control my thoughts,” a court will likely hold the will invalid because the insane delusion appears to affect how the property would be distributed.

It is important to note that an insane delusion is not the same as a mistake of fact. A person holding an insane delusion will not relinquish his beliefs regardless of any evidence presented to him.