A person who makes a will or trust "lacks testamentary capacity" if, at the time the instrument is executed, the person cannot understand the nature of what he or she is doing, or why.  A person does not have to be "raving mad" in order to lack testamentary capacity, but rather, the test is whether or not at the time that the instrument was signed, the person failed to really understand what was taking place.  This is usually a question of fact that must be determined at trial by a Judge or Jury.

Someone can be totally mad one day, but if he or she was sane on the day the instrument was signed, it is valid.  But if the person was not capable of understanding what was going on when the instrument was signed, it is not valid, even if, on many other days, the person was sane.  In these cases, testimony is usually given by the people present at or near the time of signing, and family members, who had close relationship with the testator.  Psychiatric and other medical experts who may have evaluated, diagnosed, or treated the testator may offer their expert opinions on his or her competency. 

If you have questions about whether or not a will or trust was signed by a person lacking Testamentary Capacity, or are facing a lawsuit over this question, please feel free to give us a call at 1-800-306-6010 or contact us online.