Testamentary capacity – the mental and legal ability to make a valid will – is a fundamental requirement for any will. A will made by someone who lacked this capacity can be invalidated, regardless of its formal correctness.
What is Testamentary Capacity?
To have testamentary capacity, a testator must: understand that they are making a will and know what a will does, know the general nature and extent of their property, know who their natural heirs are and how they are related, and be free from delusions or mental disorders that affect their dispositions.
All of these elements must be present at the time the will is made.
Capacity is Assessed at the Time of Making the Will
Capacity is a point-in-time assessment. A person with dementia or other cognitive impairment may have periods of lucidity during which they have sufficient capacity to make a valid will. Conversely, a person with no known mental illness might temporarily lack capacity due to medication, illness, or extreme stress.
Evidence about the testator’s condition at the specific time the will was made – not generally or before or after – is what matters.
Medical Evidence in Capacity Challenges
Challenges to testamentary capacity rely heavily on medical evidence. Medical records from around the time of the will, testimony from treating physicians, and expert forensic psychiatry opinions may all be relevant.
Family members and others who observed the testator around the time of the will can also provide important evidence.
The Presumption of Capacity
Israeli law presumes that adults have testamentary capacity. The burden falls on those challenging a will on capacity grounds to prove the incapacity. This is a significant legal hurdle that requires compelling evidence.
Protecting Against Capacity Challenges
For those making wills who have any conditions that might raise capacity questions, documenting their capacity at the time of the will is important. This might include a doctor’s letter, a video recording of the will-making process, or other evidence that demonstrates the testator’s understanding and intent.
