Here is some advice to lawyers who, at least at times, prepare wills or other estate planning documents for clients. It’s about having an easy but effective checklist for establishing client capacity.

You know you need to establish that a client has mental capacity. But do you know, off the top of your head, all the elements of testamentary capacity in your jurisdiction? If someone ever subpoenaed your file, say in a subsequent will contest, would you be able to show that your file documents your determination that the client had capacity at the time of document execution?

Here is an easy system to make sure you can establish client capacity every time.

First, research the statutes and case law in your state about what constitutes capacity. In Pennsylvania, where I practice, the statute on the requirements for a valid will simply requires a testator to be “of sound mind.” The case law expands on the meaning of that simple phrase.

Here is an excerpt from a case that nicely summarizes Pennsylvania law on this point:

The following factors must be considered to determine if a testator had testamentary capacity:

  1. Knowledge regarding the natural objects of his bounty. This frequently will be knowledge of relatives where some or all are to be beneficiaries. Understanding who the persons are who are to share in the estate will normally satisfy this consideration.  
  2. Knowledge of property and of what the estate consists. However, testator need not know every asset. Where testator intends to give all of his property to one person, his knowledge of his property is of little bearing.  
  3. Understanding what testator desires to do with the property in the estate.

The case is In re: Estate of Ballas, a lower court opinion with the citation: 2010 Pa. Dist. & Cnty. Dec. LEXIS 552, *26-28. (I have supplied the underlining and omitted citations from the text.)

The same case nicely summarizes other relevant points about capacity:

Testamentary capacity need not rise to the same level required to conduct business affairs. Testator may have capacity although old, weak and sick. Physical weakness will not create incapacity as long as sufficient mental capacity exists. A faulty memory alone is not sufficient proof of incapacity.

It is recognized that a testator is entitled to his own prejudices. Eccentricity is not equivalent to incapacity. Lucid periods are recognized by the courts.

(Again, citations are omitted.)

Keep your short list of requirements handy to go through with clients, especially those whose capacity could be questioned later on. Document the answers.

If you believe the client has sufficient knowledge to establish capacity, your documented responses will put you and your client in good stead against any future scrutiny.

If the client has insufficient knowledge, or you have doubts about capacity, you may need to seek a professional opinion from a doctor or psychologist before proceeding further. If the client lacks capacity, of course, decline the engagement.


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