What is testamentary capacity?

To validly execute a will, a testator must possess what is referred to as “testamentary capacity.” Generally speaking, testamentary capacity is the legal and mental ability to make or alter a valid will. What constitutes testamentary capacity differs from state to state. In Georgia, pursuant to O.C.G.A. § 53-4-10(a), any individual 14 and older may make a will. Under O.C.G.A. § 53-4-11(a), a testator, in order to have testamentary capacity, must have a decided and rational desire as to the disposition of his or her property. According to O.C.G.A. §§ 53-4-11(d) and 53-4-12, it does not matter that the testator is of advanced age or is not highly intelligent; what is necessary is that the testator possessed testamentary capacity at the time of execution, that he or she freely and voluntarily executed his or her will, and that such will was not corrupted by fraud, misrepresentation, duress, or undue influence.

In Mosley v. Warnock, 282 Ga. 488 (2007), the granddaughter of the decedent challenged the validity of the decedent’s will, arguing that her grandmother lacked testamentary capacity due to dementia. The Georgia Supreme Court held that, while it might have been possible that the decedent from time to time experienced lucid intervals wherein she would have been able to validly execute a will, there was evidence to support the jury verdict that, at the time the decedent did execute the will, she was suffering from some degree of dementia and, therefore, lacked the testamentary capacity required to execute a valid will.

In contrast, in Scott v. Gibson, 194 Ga. 503 (1942), a testator, who was deathly ill, executed a will. The plaintiffs filed a caveat challenging the validity of the will, contending that the testator was not of sound mind, and therefore, lacked testamentary capacity. The court held that, while the testator generally may not have been of sound mind during her illness leading up to her death, the plaintiffs failed to establish that she was not of sound mind at the time the will was executed. The Court stated: “an insane person may make a will during a lucid interval… but that a person may be feeble and suffering from an illness that today might cause sufficient reason to be wanting, and yet tomorrow or at another time even in the same day sufficient reason (mental capacity) would be present… [T]he issue is confined to the mental condition of the testator ‘at the time the will was executed.’ ” Id. at 507.

A challenger to the validity of a will may also allege that the will was the product of fraud or undue influence. In Franklin v. Belt, 130 Ga. 37 (1908), the executor and legatee of a will falsely persuaded the testator that her husband was attempting to deprive her of custody of their child, and the testator consequently executed her will based on this mistaken belief. The Court stated that “[t]o constitute undue influence within the meaning of the law, there must be mental constraint, moral coercion, the substitution of external for internal agency,” and held there was a jury question as to the claim of undue influence. Id. at 41.

It is important to keep in mind that the time to evaluate the testamentary capacity of the testator is at the time of execution. If you question whether a testator was incapacitated or subject to undue influence when signing a Will, you should consult an attorney and do so prior to providing consent to the probate of the Will.

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