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In New York there are different elements that can be used to challenge a will, including, testamentary capacity.

When an interested party such as an heir or a beneficiary wins a contest of a will the Surrogate ‘s Court judge will declare the will invalid by default and will not be admitted to probate. To win a will contest due to lack of testamentary capacity, you will need sufficient evidence since simple and mere allegations won’t be enough.

Our New York probate lawyer can help you challenge a will based on lack of testamentary capacity or defend a will being challenged based on the lack of testamentary capacity. Contact us today by email, phone or schedule your online consultation right now.

What is testamentary capacity?

In order to make and execute a valid will under New York law, certain requirements must be met. Among these, the testator must have testamentary capacity. This testamentary capacity refers to the ability that a person has to understand and execute a will.

witnesses to confirm testamentary capacity

Although the law and the concept are clear, the reality is that judges, lawyers, and academics alike have tried to find a universally acceptable definition without success. What everyone agrees on is that the testamentary capacity required to execute a will is much less than that required for signing a contract and other legal areas.

A New York County Surrogate’s Court described testamentary capacity as the lowest acceptable level of cognitive ability required by law.

Understanding testamentary capacity requirement under New York Law 

New York law specifies that at the time of executing a valid will, the testator must have the capacity to do so. This implies the following:

  • The testator must be at least 18 years old;
  • They must also possess the mental capacity at the time the will is executed to understand what this entails.

“Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property”

Section 3-1.1 of New York’s Estates, Powers & Trusts Law

New York courts have interpreted the statutory requirement of “sound mind and memory” to require the testator to know:

  • The natural objects of their bounty and their relations with them;
  • Nature and extent of his property; and
  • The nature and consequences of executing a will.

Note: The age requirement is rarely the basis of an estate litigation, however, the mental capacity requirement is. 

undue influence will

When starting the process of probate, there are different factors that may be considered such as undue influence on a will or the lack of testamentary capacity, amongst others. To learn other grounds that could be used for contesting a will check our article “Steps to contesting a will”.

As experienced will lawyers in New York, we are able to help you in every aspect of the process to challenge a will. On the other hand, If you believe that there are irregularities in a loved one’s will and you are considering taking action, don’t hesitate to contact us today.

Challenging a will due to lack of testamentary capacity

The process begins when the appointed executor offers a will for probate. It is at that moment when those interested in the estate are notified of the succession process and can respond.

If any of the interested parties consider that the will is invalid due to lack of mental capacity, they can present an objection to the probate. The court will review the evidence presented by both the objector and the proponent.

Objections to a will based on a lack of testamentary capacity are usually based on the fact that the testator suffered from a condition that diminished their cognitive capacity. An example of this would be:

  • Alzheimer’s;
  • Vascular dementia;
  • Frontotemporal dementia;
  • Parkinson’s disease;
  • Organic brain syndrome.

Note: Being intoxicated during the execution of the will to the point of failing to pass the “sound mind and memory,” is also feasible as an objection. In these cases, the testator would not have testamentary capacity to execute the will and it is a basis on which to affirm the lack of testamentary capacity.

Note: You might be interested in learning the difference between an executor and an administrator of the estate as well as the difference between an executor and a trustee to fully understand the role of an executor of a will in New York

Proving lack of testamentary capacity

The probate court presiding over a will contest typically will consider several factors when deciding if the testator had the required capacity:

  • If the testator was aware of the nature and scope of the property transmitted through their will.
  • The relationship between the testator and the beneficiary or heir of the property.
  • If the testator understood the consequences of executing a will.
  • If the testator knew the person to whom they were transferring their property.

An important aspect of determining testamentary capacity is that it is measured at the time a will is executed. That is, a testator could have suffered dementia for weeks or months before the execution of the will but if in that period he was lucid, the court can determine that this capacity exists.

Therefore, it must be borne in mind that although medical records are useful, they are not always decisive. Proving lack of testamentary capacity requires more immediate evidence. Examples of this are credible witnesses who knew the testator and testify to their lack of testamentary capacity when the will was executed.

last will and testament

The signing of the will in New York requires 2 witnesses who could testify what they observed during the execution of the will.

How to prevent a challenge based on lack of testamentary capacity

Most will challenges based on lack of testamentary capacity occur when the testator is quite old. Many New York Surrogate’s Court cases follow the same pattern:

  1. A testator over 75 years old modifies a will that they executed many years before and passes away shortly after executing the new will. 
  2. Disinherited relatives will file a will contest alleging lack of testamentary capacity along with other accusations to invalidate the new will.

To prevent a testament contest based on lack of testamentary capacity you can follow one of the following strategies:

  • Include a “no-contest” clause in your will: This essentially penalizes any beneficiary who challenges the will by voiding that beneficiary’s bequest.
  • Obtain a letter from your doctor stating that you are mentally competent: Ideally, this letter should address all factors related to the New York standard for probate capacity:
    • Understanding the extent of their estate,
    • Understand who their family is,
    • Being aware that they are executing a will and the Impact of the will itself.
  • Let your family know in advance who gets what, who doesn’t and why: Many contests for wills actually happen because someone is angry or surprised that they are not included in the will. By sharing all of this information in advance, you can help avoid a formal objection.

We have written in-depth articles about estate planning, wills, inheritances and much more. Get answers today and get in touch with us to let us know your situation. We are financial Latino experts serving the New York community in English and Spanish.

Contact the law offices of Ortiz & Ortiz

Whether you need to defend a will that is being challenged as invalid due to lack of testamentary capacity or you are considering challenging a will based on the same affirmation, it is important to be represented by an experienced estate planning lawyer in New York.

Our lawyer is experienced in representing beneficiaries, executors, heirs and other interested parties in matters related to contested estates, probate litigation and other legal matters in the New York surrogate’s court.

Call us now and let us make sure your interests are protected. We have been proudly serving clients throughout Brooklyn, The Bronx, Manhattan, Queens and Staten Island for over 30 years.