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Many people assume that because their loved one has mental issues that it meant that they would not have the capability to sign a will. This would be a reasonable assumption considering that one must have a certain amount of mental capacity to sign other legal documents, such as contracts, and would not be able to sign if under guardianship or the victim of dementia. If you have questions about the testamentary capacity of any of your loved ones, calling an experienced Long Island estate attorney is the best way to determine if your case is a strong one.
The following elements are needed for mental capacity:
1. The testator must know they are signing a will and what a will is,
2. The testator must understand the nature and value of their property and
3. The testator must understand who the “objects of his or her bounty” are.
The first part of this test is pretty self-explanatory. Either a person knows what a will is and what it does or they don’t.
As for the second part of the test, a person does not have to know the exact amount of his or her estate and each and every item owned. They do, however, have to have a general idea what their estate is made up of. For example, if there is a family home, they need to know that part of the estate is a family home. However, they also have to know what is not in the estate. An example of this would be believing their bank account had millions of dollars in it when it never did and there was no basis in thinking it would.
The “objects of one’s bounty” requirement means that the testator must recognize who their heirs are. This doesn’t mean that they have to fully know their family tree, but they should know who their spouse, children and close grandchildren. The testator needs to also recognize who is not their family, such as friends or people who bear no blood relationship or other relationship to them at all.
Someone can still have testamentary capacity when they have a guardian who is in charge of handling all of their other legal matters for them and a will signed by them is valid as long as it meets the criteria above. Additionally, someone can have a diagnosis such as Alzheimer’s and still be able to sign a legal will.
If you are involved in an estate case where mental capacity is at issue, call the Law Offices of Albert Gurevich at (516) 565-7785.
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Law Offices of Albert Gurevich
Albert Gurevich, Esq.
1225 Franklin Ave,
Garden City, NY 11530.