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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.

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.
Schedule a Free Information Call

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Testimonials

"From my first conversation with Emily, I knew I had picked the right law firm to handle my Estate Plan after having procrastinated for some time before I decided it was time to get my estate in order. Previously, I spoke with a couple other lawyers and I did not feel comfortable with their approach prior to calling Emily. Jenna did an excellent job in assessing what I wanted to accomplish and completed my will, trust and other documents in a very short time. I am so happy I made the right choice in choosing slnlaw as my estate team.."  Evelyn W.
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"Slnlaw did a fantastic job.... Their attorneys were very friendly and knowledgeable, and I never felt pressured to purchase any service. I would definitely recommend them!" Michael S.

"It was a pleasure working with with Emily Smith-Lee... She willingly shares her expertise and always listens to her clients' concerns. Emily's caring demeanor puts people at ease immediately. The outcome of my experience was quite favorable. I would highly recommend them."  Camille B.

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"SLN Law was prompt, courteous and very professional.  Emily responded quickly to my request, was very knowledgeable on the topic I needed help with and provided reasonable, sound advice.  I would definitely recommend this law firm to others and would use them again, if needed."  E.C.

Read more on our reviews page ​​
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  • Home
  • How Slnlaw Can Help
    • Employment Law Solutions >
      • Employment Termination
      • Sexual Harassment at Work >
        • Sexual Harassment and Non Disclosure Agreements
      • Massachusetts Wage and Hour Laws
      • Independent Contractor Law
      • Non Compete Agreements
      • Equal Pay Act
    • Business Law Solutions >
      • Business Contract Basics
      • Civil Suit Defense
      • Legal Issues for Start Ups
      • Trademark Basics for Small Business Owners
      • How to Incorporate a Business in Massachusetts
    • Estate Planning Solutions >
      • Why You Need an Estate Plan
      • Massachusetts Estate Tax
      • How to Make an Estate Plan
  • Attorneys
    • Emily Smith-Lee >
      • 2018 Lawyer of the Year
    • Jenna Ordway
    • Rebecca Rogers
    • Rebecca Royer
  • About
    • Slnlaw Offices
    • Directions
    • Fees, Billing and Payment
    • Privacy Policy
    • Publications and Interviews
  • Reviews
  • Blog
  • Contact