Some people may be under the impression that, by writing their final wishes on paper, they have created a valid Will. And while that may be true in part, the writing of a valid Will is an issue of public concern because the State has an interest in making sure that property is passed on to subsequent generation in an orderly manner. In New York, the validity of a Will is governed by statute, in this case EPTL § 3-2.1. In the first part of this series, we are going to consider the issue of testamentary capacity, or who can make a Will in New York.
To create a valid Will, a person must be 18 years of age and be of sound mind, what is called testamentary capacity. The standard for testamentary capacity, or soundness of mind, is lower than for the capacity to contract. Note that this important because in the event that a person is creating a Will and a prenuptial agreement (a contract) at the same time, then the standard for soundness of mind is not the same for each document. The documents should be drafted with these different standards in mind to withstand any future challenges.
There are four ways to prove that the individual creating the will (testator) had testamentary capacity. First, the person must understand what he or she is doing, that the person is signing a Will. This goes to intent, that it is the testator’s intention to create a Will. In addition, the person must understand that a Will transfers property at the time of death and not while the person is still alive. Finally, the person must understand that making a Will is a solemn legal act that will be executed with statutory Wills formalities.
Secondly, the testator must know the nature and extent of his or her property. If a testator stipulates in a Will the donation of property that the person has never owned or does not currently own, this may later be used as an indication that the person did not have testamentary capacity at the time of making the Will. A person of sound mind is presumed to know the extent of what he or she owns.
Thirdly, the testator is expected to know “the natural object of his bounty,” meaning the people in the testator’s life to whom the property will be transferred. For example, leaving property to fictional characters or notable persons who have already passed away may be an indication of a lack of testamentary capacity.
Of special note here are pets. Though the owner may consider a pet to be a “best friend” and may grant to the pet some human qualities, the law considers a pet to be property. Therefore, it is better to find and appoint a caregiver for your pet in your Will, and to create a trust to take care of the pet’s expenses, such as veterinary care, pet insurance, grooming, food, and equipment. You can stipulate in the trust document how you wish your pet to be cared for. The trustee can then make sure that your caregiver abides by your instructions. If not, then a new caregiver can be appointed.
Finally, the testator must have a plan to distribute the property to actual persons. Here, the plan must be coherent. It does not matter if the plan is eccentric so long as it is logical and consistent. The test for rationality is that the plan holds together logically.
What about the mental state of the testator? Suppose the person cannot take care of his or her own affairs and cannot legally make a contract. Let’s even assume that the person has a court-appointed guardian to manage his or her property. Can that person still make a Will?
The answer is yes. The legal definition of “sound mind” with regard to making a Will has nothing to do with intelligence. So long as the five-factor test above has been met, then the test for soundness of mind has been met. Even if a person has been adjudicated to lack mental capacity, such as a mental illness, a jury could still find that the person drafted the Will during a lucid interval. The issue of a lucid interval is a question of fact for a jury to decide in the event of a Wills contest.
Courts have upheld Wills drafted by persons who abused drugs and alcohol, suffered from old age or illness, or were under a physician’s care. Even a person who suffers from an insane delusion, such as a belief that he or she is the ruler of Atlantis, may make a Will. The parts of the Will affected by the delusion will be invalidated. So the gift of the palace in Atlantis will be invalid, but other gifts may survive. Because psychiatrists are often called to provide expert testimony in such Wills contest cases, the profession has developed a set of guidelines and protocols to assess testamentary capacity.
Attorneys may choose to videotape the Will execution formalities, during which time they will ask the testator about the disposition of property in the document, and ask that the testator affirm that he or she understands that they are signing a Will. Such precautions may be necessary in anticipation of a Wills contest. If your attorney wishes to take these precautions, he or she is acting in your best interest so that your property is distributed according to your wishes.
In the next installment of this series, we will look at the issue of the testator’s signature. As we look at these discreet point, my goal is to provide you with a complete understanding of what it takes to create a valid Will. This information, in conjunction with the prior information found on past posts, should assist you as you prepare for your conference with your attorney.
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