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Estate Planning Lawyer in Wisconsin Explains Testamentary Capacity

Estate Planning Lawyer in Wisconsin Explains Testamentary Capacity

What happens sometimes is a person procrastinates and does not prepare a last will and testament until the last minute when they are aging and health-wise, more vulnerable. This person may or may not have the testamentary capacity to fulfill the requirements of a valid Will. On the one hand, they may be more susceptible to undue influence, fraud, and duress, which would––even if the testator has testamentary capacity––invalidate the Will. On the other hand, upon the testator's death, even though the Will is offered to probate as valid, the question of testamentary capacity makes it vulnerable to a Will contest. All of this makes it harder and longer for heirs to receive their benefits and inheritance. 

At Heritage Law Office, our estate planning attorney in Wisconsin believes in being proactive and creating a smart estate plan well in advance of any question of testamentary capacity. We want to avoid risks and mistakes so that probate goes smoothly. Contact us either online or at 414-253-8500 to learn more. In the meantime, here's what you need to know about testamentary capacity.

Testamentary Capacity as a Requirement of a Valid Will in Wisconsin

To make a legally valid Will, the testator must have testamentary capacity. A four-prong test guides us on how testamentary capacity may be determined: 

  1. Did the testator appreciate the nature and consequences of creating the Will?
  2. Did the testator know the extent and nature of their property?
  3. Did the testator know the relationship between the testator and the proposed beneficiaries?
  4. Was the testator unaffected by any disorder of the mind or insane delusion?

It is presumed that when a Will is offered to probate, it is valid. That presumption, however, is rebuttable and so, it is contestable. 

Indeed, challenging a will based on the testator's testamentary capacity is rather common. The challenger has the burden to show the testator lacked capacity. If it is shown that the testator did not have capacity, it is invalid and will be disregarded. The decedent's estate will then likely pass to their heirs through probate.

Distinguishing the Difference between Testamentary Capacity and Testamentary Intent 

Testamentary capacity is directly linked to another requirement of a valid Will: testamentary intent. Testamentary intent considers whether the testator, at the time the Will was executed, subjectively intended the contents of the Will. Here, too, there is a presumption that the testator is familiar with and knows what the contents of the Will are since they presumably prepared it or directed its preparation.

Intent comes into question when there are allegations of:

  • Undue influence, where another person improperly substitute's their wants in place of the testator's will
  • Fraud, when a person knowingly makes a will but its terms are based on material misrepresentation of facts made to the testator by someone who will benefit from the misrepresentation
  • Mistake, where the testator intended to execute their Will but made a mistake and signed another document (e.g., another draft of the Will that no longer represents the testator's intention)

If it shows that the testator lacked testamentary intent, the probate judge may invalidate the Will.

In sum, testamentary capacity is about the testator's ability to understand the will while testamentary intent is about the testator's intentions reflected properly in the Will.

A Lack of Testamentary Capacity Can Invalidate a Will in Wisconsin

As mentioned, people who think that a testator lacked the legal capacity to make a Will can contest the Will in court if they have legal standing. If they can prove that one of the elements of testamentary capacity was not present at the time the testator created and signed their Will, the court can invalidate the Will.

If a will is invalid, property listed in the Will will pass to the decedent's heirs through the state's intestacy law.

Protect a Will in Wisconsin against Challenges Based on Lack of Testamentary Capacity

Testators must be very clear that they possess testamentary capacity, especially when the Will is created at a later stage in life. Testators can take an extra step to forestall a contested Will by creating “self-proving” wills. 

Self-proving wills are sworn statements signed by witnesses affirming that the testator was coherent and lucid at the time the Will was signed. These “self-proving” Wills help defeat challenges based on testamentary capacity.

Contact a Wills & Trust Lawyer in Wisconsin

A last will and testament that reflects your intentions and can withstand someone contesting it based on lack of testamentary capacity (or any other ground) is the only way to safeguard your beneficiaries' rights and interests. At Heritage Law Office, our estate planning lawyer will walk you through the process, listen to your wants and needs, and help you draft a smart, comprehensive Will. Contact us today either online or at 414-253-8500 to schedule a free consultation.

Frequently Asked Questions (FAQs)

1. What is testamentary capacity?

Testamentary capacity is a legal term used to describe a person's legal and mental ability to make or alter a will. This term also includes a person's ability to understand the effects and ramifications of their decisions on the allocation of their assets upon their death.

2. How can testamentary capacity be determined?

Determining testamentary capacity typically involves a four-prong test: understanding the nature and consequences of creating a will, knowledge of the extent and nature of one's property, comprehension of one's relationships to the proposed beneficiaries, and absence of any mental disorder or delusion that might influence decision-making.

3. What is the difference between testamentary capacity and testamentary intent?

While testamentary capacity relates to a testator's mental and legal ability to make a will, testamentary intent focuses on whether the testator truly intended the contents of the will at the time of its creation. It's about ensuring the will accurately reflects the testator's wishes and desires.

4. How can a will be protected against challenges based on lack of testamentary capacity?

A testator can protect their will from challenges of lack of testamentary capacity by creating a “self-proving” will. This involves signing sworn statements by witnesses who affirm that the testator was of sound mind and judgment at the time the will was signed. These sworn statements can help counter any future claims of lack of testamentary capacity.

5. What happens if a will is invalidated due to lack of testamentary capacity?

If a court invalidates a will due to lack of testamentary capacity, the deceased person's assets will be distributed based on the state's intestacy laws, which may not align with the testator's original intent or wishes. This makes ensuring testamentary capacity at the time of will creation critically important.

Contact Us Today

For a comprehensive plan that will meet your needs or the needs of a loved one, contact us today. Located in Downtown Milwaukee, we serve Milwaukee County, surrounding communities, and to clients across Wisconsin, Minnesota, Illinois, and California.

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