Mental Capacity to Make a Will in Massachusetts

In order to make a legally valid will or other estate planning documents, the person signing the documents must have mental capacity. Mental capacity to sign a will is not the same as mental capacity to enter a contract. It is possible even for people experience dementia to be considered "of sound mind."  The legal term for this is "testamentary capacity."

Mental Capacity to Make a Will Defined

​The mental capacity required to sign a will is actually quite limited. A person need only understand the extent of their property, the people who are their natural heirs, and the consequences of signing a will.

Translated, if they understand the nature of their property, know who their close family members are, and know that signing the will dictates who gets that property, they likely have sufficient mental capacity to sign a will.

It is important to remember that the person only needed capacity at the moment he or she signed the will. Someone with a mental disorder or dementia may have lucid moments even if there are times they do not meet the test. At those times, they may have the legally required state of mind.

Proving Mental Capacity to Make a Will

If there is no challenge to the will, the probate court will assume a person who validly executed a will had testamentary capacity at the time the document was signed.

If the will disinherits a natural heir, like a child or a spouse, there is a high chance it will be challenged. The person left out of the will may claim someone exercised undue influence over the deceased and that the testator lacked capacity.

If there is a challenge, the person presenting the will has to prove capacity.
People who can help prove mental capacity include the testator's physicians. If you have doubt about this, it is good practice to get a doctor's note at the time the will is executed.

The estate planning lawyer who supervises the signing can also provide testimony to capacity.

Mental Capacity and Your Aging Parents

Often seniors are assisted by their adult children in creating or modifying their estate planning documents. Unfortunately, the need for this assistance often arises after the senior has started to struggle with their mental capacity to understand day to day life. There are a few things adult children helping their parents should understand.

First, the estate planning lawyer will most likely ask for time to meet with your parents alone. This is not about distrust of you. It is because the attorney represents your parents, and has an obligation to make sure they are comfortable that the estate plan reflects your parents' wishes. The attorney also needs to make sure they are comfortable that your parents have the capacity to make those decisions.

Second, if your parents want to make or change a will to leave out a child or leave unequal inheritance to their children, you may want to be proactive and get an opinion from their doctor ahead of time. This is especially the case if you are the child helping them and you are the one who will benefit.

Third, even if your parent has the required capacity, they may understand things differently from you. For example, you may understand that the purpose of the power of attorney is to manage their bills and financial accounts. They may be worried that this gives you the legal authority to sell their home and put them into long term care.

Ideally, you and your parents will have a conversation about this. It may be the case, however, that they share their concerns with the attorney alone. Because the attorney client relationship is between the lawyer and your parents, the lawyer may not be able to share everything with you. They should, however, actively encourage your parents to communicate their concerns with you.

How We Can Help

We are ready to help.  We have worked with many seniors and their adult children to make or amend estate plans.  We have a simple process for getting you from wherever you are now to executed and final documents and peace of mind.  It starts with an initial consultation, which is absolutely free.  You can use the button below to schedule your consultation, or simply give us a call at  781-784-2322, or fill out our web form.


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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
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