What does it mean to have lack of mental capacity or lack of testamentary capacity?
Lack of Mental Capacity or Lack of Testamentary Capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of his bounty (his family). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent or that the Last Will and Testament was the product of fraud, undue influence or overreaching. Lack of Mental Capacity or incompetence is typically proven by medical records, irrational conduct of the Decedent, and the testimony of those who observed the Decedent at the time the Last Will and Testament was executed.