Did your loved one have capacity when creating an estate plan?

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Did Your Loved One Have Capacity When Creating An Estate Plan

A lot of people wait until the last minute to create or modify an estate plan. While there’s nothing inherently wrong with doing so, it does leave the door open to some legal issues that can linger for a significant period of time to come. In these circumstances, your estate or the estate of a loved one could end up facing validity challenges which, depending on how they turn out, can completely reshape asset distribution.

Testamentary capacity

One key component of a legally valid estate plan is testamentary capacity. In short, you have to have the right mental state in order to create an estate planning document, such as a will or trust, in a way that is legally binding. When assessing testamentary capacity, a court will look at a number of factors. Perhaps chief amongst them are your ability to understand the amount of property at stake and its nature, as well as how that property will actually be disposed of when the time comes.

How testamentary capacity is challenged

One’s testamentary capacity can be challenged in a few different ways. Evidence of a medical condition, such as dementia, is often used to challenge capacity, but so, too, is evidence of undue influence. Undue influence can arise when another party exerts control over the person creating the estate plan and therefore is able to manipulate the terms of the document in question. Evidence that demonstrates a lack of testamentary capacity can come in document form, such as medical records; through testimony; or both.

Know how to deal with your estate planning and probate issues

Losing a loved one is never easy. And it’s no walk in the park when considering your own mortality. Yet, dealing with the legalities of these situations is important if you want to achieve a just outcome. That’s why we encourage you to educate yourself on the estate planning and probate process. Only then can you ensure that you’re protecting your interests as fully as possible.


Michael Ritigstein is a Founding Partner of the firm concentrating his efforts in supporting the firm's litigation, corporate and estate matters. Mr. Ritigstein graduated from the University of Delaware in 1996 and Seton Hall University School of Law in 2000. In 2007 he received a Masters of Law in Taxation with a concentration in Estate Planning, from Temple University's Beasley School of Law.

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