Capacity to Make a Will

In order to make a will, you have to be legally capable of doing so. This involves the familiar "sound mind and body" requirement. It also means that (in nearly all of the states) you have to reach the legal age of majority (18) before you can make your will.

Meeting the sound mind and body requirement is simpler than you may think. Fortunately, the requirement is that the testator be "legally competent," not extremely clever or in peak physical condition. Legal competence means that you are capable of understanding the nature and importance of the document they are preparing and signing. In the case of a will, you must:

• know the nature and extent of your property;
• know the "natural objects of your bounty" and know to whom you are giving the property; and
• understand the significance of your actions.

Keeping the above criteria in mind, the following conditions can affect the validity of your will:

• being high on anything other than life;
• having a physical handicap or ailment that affects your reasoning abilities or otherwise affects your ability to met the tests for legal competence;
• being declared mentally incompetent by a court; or
• being physically paralyzed and unable to communicate your instructions

The sound mind and body requirement has to be satisfied only at the time you sign your will. Once you make a valid will, it will not become invalid just because later events affect your legal competence. This is significant as many people are living longer and, therefore, are more likely to suffer age-related disabilities such as Alzheimer's disease or strokes.

It is also important to realize that a person can be suffering from early stage Alzheimer's, mental illness, or other illnesses that affects his or her memory and reasoning ability and still be able to make a valid will. All they need to have is a general knowledge of what they own (my house, some stock), who would "naturally" inherit (my husband, my children), who they want to benefit (a favorite charity or niece) and what making a will means (these people will receive my property when I am dead.) Similarly, courts have found that a person who had periods of lucidity was competent to make a will during those periods.

Work Smart Video or film recordings are sometimes used in conjunction with a written will to help establish the mental capacity of the testator and to show that there is no undue influence associated with the process. This is fine as long as there is a valid written will and the person being recorded is on his or her best behavior. Video-taping yourself as part of the will making process is the infamous double-edged sword, however. If the opportunity ever presents itself, anything you say to the camera can and will be used against you in a (probate) court of law. If you do choose to videotape yourself, dress, speak, and act as conservatively as possible. Do not take this as your opportunity to rant and rave or your last chance to get in some final jabs at someone. Your loved ones may be used to such outbursts, but the objective observer (like a judge) is less forgiving and may view you as simply a mentally incompetent lunatic.

The minimum age requirement is even more straightforward. State law establishes an arbitrary age of legal majority. In nearly all states, this age is 18 years, although some states allow married individuals who are younger than 18 or emancipated minors to execute a will. This magic age entitles a person to make adult decisions, including having a will made for themselves. Not too many people rush out to make a will as soon as they turn 18, though.

Lest you think otherwise, there is some method to the madness of these requirements. As imperfect as they may seem at times, these rules, as well as other will making legal requirements, are really intended to protect your interests in the whole process. After you are dead, your will has to survive and be able to stand on its own without you.

Jumping through some minor legal hurdles is a small price to pay for the security of knowing that your wishes will be carried out. As the example below illustrates, the alternatives aren't very pretty either.

Warning While visiting a relative in the hospital, the following macabre will making scenario was observed. An elderly woman, unconscious and with various tubes running in and out of her body, was visited by her son and daughter-in-law. While the woman was still unconscious, the relatives held a pen in her hand and made her sign something, which turned out to be her will. The relatives then called a nurse and had her sign the will as a witness, explaining that the woman woke up long enough to execute her will. This is so wrong on so many levels. Looking past its sheer gruesomeness, this situation clearly violates the requirement that a will be made by a person of sound mind and body. Given the circumstances, even a minimal challenge of the will in court would easily result in the "will" being declared invalid. Unfortunately and very sadly, this situation is not an isolated incident. To avoid this situation from happening to you, have a valid will made while you still can.