What is Testamentary Capacity?

The creator and signer of a Will is known as a testator. Testamentary capacity, therefore, is the ability of the testator to knowingly sign his or her Will. There are numerous ailments that may result in the incapacity of the testator, preventing him or her from validating an unsigned Will. One of the most common diseases that causes this is Alzheimer’s Disease. Many Americans in their 30s, 40s, and even 50s, believe there is no threat of developing this terrible disease or other forms of dementia — they view early symptoms simply as “senility” and “growing old”.

However, as the Alzheimer’s Association points out, 1 in 3 seniors in America will die with Alzheimer’s Disease or some other form of dementia. In 2015, it was estimated that 5.3 million Americans suffered from Alzheimer’s.

As a result, it is imperative that you update your estate plan on a regular basis. Currently, Alzheimer’s Disease is the only cause of death in the top 10 causes that cannot be cured, prevented or even slowed.

But what if you fail to sign your Will and start to show signs of dementia? Is it too late? Are you unable to sign your Will? It depends on whether you have testamentary capacity. Just as there are different types and stages of cancer, there are different types and stages of dementia. To determine if you have the ability to sign your Will, the following criteria must be met:

• Extent and value of your property — You know what assets and property you own and their current value.
• Natural beneficiaries — You know which persons are your natural beneficiaries.
• Disposition you are making — You understand the function of a will and how it is used to dispose of property.
• How to form an orderly plan — You have an understanding of how these components come together to create an estate plan to distribute your assets and property.

You must understand that if your family members are unhappy with the outcome of your Will, they may seek a Will Contest on the basis that you were not of sound mind when you signed the document. Should your will be found invalid, a previous Will may be used or your Estate may pass through NJ’s intestacy laws.

The best way to ensure your Will is clearly understood and acknowledged as valid is to consult with an experienced attorney. While hashing out a comprehensive Estate Plan may not be at the top of your to-do list, it can save your heirs headaches and heart ache in the event of your death. For more information on Estate Planning in New Jersey, contact Alec Borenstein, Esq., at alec@bmcestateplanning.com, or call 908-236-6457.