One of the most important areas of elder law is protecting your assets with a will. Having a will in order means your estate will be handled in the way that you wish. However, writing a will can be extremely complicated, and there are several issues that can result in your will being challenged, including your capacity at the time your will was written.

When estates are litigated, one of most common reasons is the capacity of the person who wrote the will. If you want to make sure that your will is valid and that your assets are protected, you need to learn who has the capacity to write a will and how you can get help from a legal professional.

Capacity Standards

Unfortunately, there is no standardized test to determine a person’s capacity in regards to arranging their will. Instead, capacity is measured on a case-by-case basis. Most situations, however, will rest on the legal test that was established in Banks v. Goodfellow, an English case that took place in 1870.

Based on Banks v. Goodfellow, there are three basic criteria to determine who has the capacity to write a will:

  1.     The person was able to understand what a will is and what effect writing the will would have
  2.     The person understands the property and other assets that are included in the will
  3.     The person understands claims of people that would benefit from being included in the will

Judge Assessment

When a will is being contested due to the capacity of the person who wrote the will, a judge will assess the state of the will writer at the time that the will was made. In addition to the three items outlined in the above section, the judge will determine if the person writing the will possessed a “disposing mind and memory.” In simple terms, this means the person writing the will decided to write the will of their own volition and understood all the elements included in the will.

If the judge determines the person who wrote the will had the capacity to do so, then the will stands.

Burden of Proof

A factor that makes estate litigation based on capacity very difficult is that the burden of proof rests on the people supporting the will. This means that someone could claim your loved one did not have the capacity to write their will and you would be responsible for proving otherwise. You will need to provide a preponderance of the evidence that your loved one was of sound mind when the will was written if you want their wishes to be upheld.

Legal Help to Write a Will

Lawyers have the responsibility to determine that their client has the capacity to make a will during drafting, which means you need a knowledgeable, compassionate attorney on your side when it’s time to plan your estate. Stano Law has provided estate planning services to our clients in Cuyahoga County for years. We can help you draft a will so that your assets will be protected and your wishes will be honored.

Contact us today to learn about our will drafting and estate planning services.