Idaho Law Blog
By Matthew Stucki
This is the second of four parts discussing the execution of a valid Last Will and Testament. If you recall, the first step in executing a valid will requires the person executing the will, the Testator, to have Testamentary Intent. The second part, which is the discussion for this post, deals with the requirement of Testamentary Capacity.
As people are living longer, it seems that more and more individuals are having to deal with the effects of dementia and memory loss. Depending on the severity of one’s mental condition, signing a Last Will and Testament may be out of the question. Under the law, a person must have Testamentary Capacity in order to execute a Last Will and Testament. However, judging one’s capacity can be difficult.
For decades the Idaho Supreme Court has held that “if a man is able to transact business, he is clearly competent to make a will, but he may be competent to make a will and still not be able to transact business.” On the face, this position does not seem to help in determining whether an individual has capacity.
Fortunately, additional guidance has been given as to determining capacity to execute a Last Will and Testament. In general, testamentary capacity requires the Testator to have sufficient mental understanding of what property he owns, who his natural objects of his bounty is (or who his heirs are), and an understanding of how the property will be distributed to the name beneficiaries in Testator’s Last Will and Testament upon death. If the Testator can understand these specific items, it is said that he or she has testamentary capacity. In other words, the Testator does not have to understand the ins and outs of a multi-million-dollar business transaction. Rather, the Testator simple needs to know what he owns, who his family is, and how his property will be distributed upon his death.
In most cases, determining testamentary capacity is rather easy. But, there are instances that come up where there can be uncertainty as to one’s testamentary capacity. In these cases, it is a good practice to have the Testator’s family medical practitioner examine and determine whether the Testator has capacity to execute a Last Will and Testament. Such an opinion by medical personnel can help avoid court if a decision as to one’s capacity is ever challenged.
If you have any questions regarding a Testator’s testamentary capacity or how to execute a valid Last Will and Testament, contact our Idaho Estate Planning Team of lawyers.
Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Matthew P. Stucki and the Racine Olson team of Estate Planning attorneys in Pocatello, Idaho Falls, or Boise. You can also email Matthew P. Stucki directly at mps@racinelaw.net. We will answer your Idaho, Estate Planning questions and will help you determine how to meet your personal estate planning needs.
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