Will & Trust Law

Recognizing the lack of mental capacity in contemplating the drafting of a Will.

Whenever my firm is asked to draft a Will for a client, an important first issue becomes whether there is any lack of mental capacity exhibited by my client to execute the Will. In Georgia, as is the case in most of the other states, the law says a person has the mental capacity to make a Will if the person making the Will passes the three following tests:

(1) Can the maker of the Will understand how much property he or she owns?

(2) Does the person making the Will know who his or her family and or friends are who will be potentially receiving the property?

(3) Does the maker of the Will understand that he or she is creating a document that will dispose of his or her assets at the time of their death?

For example, if a future client of mine comes in to have his Will drawn up, but has no idea how much money he has in his bank account, or whether he owns any real estate, or anything about the assets he might currently own, then that person is likely not to have the competency to have a Will prepared on his behalf.

Or, let’s say someone wants to have a Will prepared but has forgotten who all of the members of her family are to whom she wants to leave her property. As to the third test, if a family member comes in dictating the terms for a person who is making the Will, but the maker of the Will has no idea that he is having a Will prepared, then that person is likely to be under the undue influence of a controlling family member seeking enrichment.

However be careful! The law holds that if a person exhibits any of these three signs of incompetence on an ongoing basis, but is lucid and clear thinking at the time of the Will signing ceremony, then that Will is likely to be judged valid. The only requirement is that these three factors are not in evidence at the time the Will is executed.

Will & Trust Law