For a will and other estate planning documents to be deemed valid by a probate court, they must meet several litmus tests. One of these critical factors is what is known as the ‘testamentary capacity’ of the person who is documenting their final wishes for their estate via a will. (This person may be referred to as the testator.)

The term testamentary capacity is legal-ese for a person’s mental — and therefore legal — ability to make or alter a valid will. From time to time, you may also hear the phrase “of sound mind and memory” or “disposing mind and memory.” The presumption under Illinois state law is that any person writing a will is in possession of testamentary capacity and able to write a valid will, as long as they are 18 years of age or older.

The qualifiers of testamentary capacity are that the testator is able to do the following:

  • Know and remember the natural objects of his or her bounty: the ability to recognize one’s spouse, children, and other family members who would be considered heirs;
  • Comprehend the kind and character of his or her property: a basic understanding of one’s own assets, including finances and property.
  • Make a disposition of his or her property according to some plan formed in the testator’s mind: essentially, the ability to make a plan for how to distribute those assets and outline it in the will.

Invalidating a Will Due to Lack of Testamentary Capacity

There are a handful of reasons that a will might be invalidated, of which testamentary capacity is just one. Others include fraud, forgery, undue influence, revocation, noncompliance with formalities of execution, and more.

Illinois state law assumes the testator possesses testamentary capacity. Therefore, if someone wanted to invalidate the will by proving otherwise, they have the burden of proof. They would need to be able to demonstrate clearly that the testator was not of sound mind and memory at the time that they wrote the will; that they did not recognize family, did not know the value of their assets, and/ or were not capable of planning for the distribution of those assets after their death.

When a party seeks to invalidate a will based on a lack of testamentary capacity, they need to present evidence related to the testator’s mental capacity at or around the time that the will was drafted and signed. The evidence will carry more weight the closer it is chronologically to the writing of the will.

Commonly introduced evidence might include medical records that indicate cognitive impairment. A diagnosis of Alzheimer’s disease and other forms of dementia, for example, may be compelling in these kinds of cases. 

Beyond direct medical professionals who examined or treated the individual, an experienced witness may also be able to render a professional opinion based on other evidence. Other people who personally engaged with the testator may deliver testimony regarding their observations and opinions of the testator’s behavior for the courts to weigh. Additionally, assume that the attorney who prepared will on behalf of the testator will be asked to testify as well.

Who Can Contest the Will – And When?

According to Illinois state law, only a person who is adversely affected by the will of a deceased person is allowed to contest the validity of that will. 

To be able to legally contest a will, an individual must have what we call “standing” to do so. Standing indicates that there is a direct, financial, and existing interest that would be negatively impacted if the will were ultimately accepted by the courts and executed accordingly. 

Someone with standing who might seek to invalidate the will might be a spouse or a child who was excluded from an inheritance, or those who suspect that undue influence was involved in the instructions regarding assets.

When a petition is being made to contest a will, a notice must be mailed or delivered to all heirs, legatees, fiduciaries, and all other persons whose rights may be impacted by the dispute. The executor or administrator of the will and their attorney of record must also be sent the required notice.

A claimant seeking to invalidate a will based on a lack of testamentary capacity, or for any other reason, has just six months from the date that the court enters an order admitting the will into probate. 

Ultimately, it can be quite challenging to successfully invalidate a will due to a lack of testamentary capacity, especially without decisive evidence that can be submitted in support of the claim. A successful claim would require the expertise of a knowledgeable attorney who understands the minutia of estate planning and would be able to craft a compelling case.

Get Expert Advice

Settling a loved one’s estate, operating within the probate courts, or facing a person of standing who contests a will can be challenging and exhausting. You need a trusted guide to help you through these complicated administrative and legal processes.

And when the time comes to prepare your own legal documents, it’s essential to partner with an experienced and compassionate advocate who can help you navigate the complexities of planning for the future and make sure your loved ones are provided for. 

If you want to know more about how to get started, reach out to schedule a one-on-one consultation with one of our expert attorneys.