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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.

Need Help With a Question About Capacity to Make a Will?

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Wondering Whether a Family Member Can Change Their Estate Plan?

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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 Our Estate Planning Lawyers Can Help

Estate Planning Jenna Ordway slnlaw MA
Estate Plan Jenna Ordway slnlaw MA
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Estate Planning in Massachusetts
We are ready to help.  We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals.  You can use the button below to schedule a free information call, or simply give us a call at  781-784-2322.
Schedule a Free Information Call

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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Advice for Employers >
      • Hiring Independent Contractors in Massachusetts
      • Termination Best Practices
      • Workplace Discrimination Employer Guide
      • Employee Handbook >
        • Employee Handbook Basics
      • Paid Family Leave and Your Small Business
      • Overtime Law for Employers
      • Employee Complaints About Pay
      • Employee Non Competes
    • Advice for Employees >
      • Employment Case Assessment
      • Discrimination in the Workplace
      • Sexual Harassment at Work >
        • Sexual Harassment Resources
        • Sexual Harassment in a Small Business
        • Constructive Discharge
        • Sexual Harassment and Non Disclosure Agreements
        • Sexual Harassment and Remote Work
        • Sexual Harassment Case Studies
      • Massachusetts Paid Family Leave
      • Non Compete Agreements >
        • Are non competes enforceable
        • Massachusetts Non Compete Act
        • Pre 2018 Massachusetts Non Competes
        • Non Compete Case Studies
        • Can I Avoid My Non Compete
      • Independent Contractor Law >
        • Independent Contractor Test
        • Working As Independent Contractor
        • Independent Contractor Case Studies
        • Independent Contractor Roadmap
      • Wage and Hour Laws >
        • Massachusetts Minimum Wage
        • Overtime Law >
          • Overtime Exemptions
          • Employee Travel Time
          • Federal or State Overtime Law
        • Overtime Law Case Studies
        • Massachusetts Wage Act >
          • Payment of Commissions
          • Wage Deductions
          • Late Payment of Wages
          • Paid Time Off
        • Wage Act Case Studies
        • What Are Your Wage and Hour Rights
      • Employment Contracts in Massachusetts >
        • Restrictive Covenants
        • Promissory Estoppel
      • Employment Termination >
        • Severance Pay
        • Should I Accept a Severance?
    • Unemployment in Massachusetts >
      • Unemployment Overpayment
      • Pandemic Unemployment
      • Unemployment Case Studies
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection >
      • Why You Need an Estate Plan >
        • Why You Don't Have an Estate Plan
      • Massachusetts Estate Tax
      • Asset Protection Trusts
      • Children with Special Needs
    • Planning for Assisted Living
    • Is Your Will Enough >
      • Special Circumstances >
        • Estate Planning for Blended Families
        • Estate Planning for a Non Citizen Spouse
        • Estate Planning and Divorce
        • Estate Planning for Small Business Owners
      • Surviving Spouse's Share
      • Disinheriting Children Massachusetts
      • Updating Your Estate Plan
    • Estate Planning Documents >
      • What is a Trust >
        • Revocable trust
        • Irrevocable trust
        • Irrevocable vs revocable trust
      • Last Will and Testament
      • Durable Power of Attorney
      • Massachusetts Health Care Proxy
      • Life Estates in Massachusetts
      • Massachusetts Pet Trust
    • Probate Process >
      • Non Probate Assets
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Trademark Basics
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    • Sale of Business
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    • Emily Smith-Lee >
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    • Rebecca Rogers
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  • Legal FAQs
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    • Commission Pay FAQs
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