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Wills - Sufficient Mental Capacity
 
In order to execute a valid will, a person must have sufficient mental capacity, called testamentary capacity. All adults are presumed to have testamentary capacity. This means that unless there is evidence of incapacity a person is assumed to be able to make a will.

How Much Capacity Is Enough?

Even a person with mental disabilities or dementia can make a will as long as he or she can understand the following:
  • what they own and the value of their property, in general
  • the people who would normally be their beneficiaries (e.g., spouse, children)
  • how their property will be distributed according to their instructions in the will
For example, if a person understands that she owns a house worth approximately $90,000 and has approximately $10,000 in savings, that she has three living children, and that by leaving everything to one daughter she is disinheriting her other two children, that would be sufficient mental capacity to make a will.

What if the Person Is Under a Guardianship?

Even if a person is subject to a guardianship or conservatorship, he or she may still be able to execute a will. The will must be signed in the presence of a district court judge