The Dayton Law Firm, P.C.

Does your parent still have testamentary capacity?

As parents age, they can begin to lose their mental faculties more quickly than they realize or want to accept. While in some instances this is merely confusing, in other cases it may pose a serious threat to their own well-being and the best interests of those around them.

This is particularly true when dealing with estate planning. Creating a will requires a clear mind and a reasonable understanding of the legal matters involved. If your parent creates a will while in a suggestible or unfit frame of mind, he or she may complicate their legal future. It's frustrating for everyone involved when it's time to carry out his or her wishes but the testator's capacity is called into question.

Can a person be too old to make a will?

While children younger than 18 do not have the legal authority to create a will in most cases, there is no similar restriction for the elderly. As long as a person can demonstrate his or her clarity of mind and meet the other legal requirements necessary to draft a will, the law allows will creation to proceed.

However, practically speaking, many elderly people do not have the testamentary capacity to create a valid will, whether they want to admit it or not. This is a delicate issue, because a person may experience many symptoms of aging while still maintaining a reasonable understanding of legal issues. They can still possess the ability to enter into binding agreements and sign legal documents.

However, for a will to be considered valid, the testator must understand:

  • The value and nature of the property involved in the will
  • Which dependents he or she must provide for
  • Which individuals he or she wishes to name as beneficiaries
  • The nature of the disposition he or she wishes to make

If a testator does not understand these core issues, it is likely he or she does not possess testamentary capacity. Of course, if a person lacks testamentary capacity, any wills created under those conditions may not hold up to legal scrutiny. This can stymie the execution of that person's wishes.

Navigating family estate-planning issues is rarely simple, and few things can rock the boat as swiftly as questioning someone's ability to make sound decisions. However you choose to proceed,you must understand the legal options you have to keep your rights secure and resolve your estate-planning conflict fairly.

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The Dayton Law Firm, P.C.
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San Jose, CA 95110-1319

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