Being Present Enough to Sign

Testamentary capacity or "being of sound mind," is about being clear enough in the moment to make choices about your property and the people you care about. It’s one of the legal standards used to decide whether someone can sign a will. Capacity is judged at the moment the will is signed.

In general, to have testamentary capacity, a person must be able to understand the following at the time the document is signed:

1) The Purpose of the Document: can the testator (the person who makes the will) explain in their own words what the document does? Does the testator understand what will happen once it is signed?

2) Awareness of the Property: can the testator describe the general nature of their property, i.e. home, accounts, pets, belongings?

3) Who Naturally Fits into Their Circle of People: Does the testator recognize the people who would normally inherit their property such as immediate family members or those designated by state law. Note that knowing who would generally inherit property does not mean that the property cannot be willed to others.

Capacity is only one reason a will could be challenged. Suffering from an illness or being older in age do not automatically mean that there should concerns about capacity. However, capacity might be questioned when taking medication for an illness that causes drowsiness, trouble focusing, or memory gaps. Or someone's capacity might be scrutinized more closely if they have been diagnosed with an illness that affects memory and cognition like dementia.

Briefly, a will can be challenged for other reasons too, such as improper document execution or undue influence. For example, maybe the will was not signed in accordance with state law because it did not have a correct number of witnesses or the witnesses used are also beneficiaries. A will can be challenged if someone suspects that the testator was coerced into including someone as a beneficiary they did not want or excluding a beneficiary because of pressure.

One important thing to remember is this: The person who challenges a will has the burden to prove lack of testamentary capacity. They must show the signer didn’t understand what they were signing.

But here’s the real question. Why open the door at all?

Why leave even a tiny crack for someone to argue you weren’t clear, steady, or fully present when you signed your will or other Life Essentials documents?

Sadly, many people wait too long. They wait until they’re sick, overwhelmed, medicated, or deep in a crisis. That’s when confusion creeps in. That’s when they are more susceptible to pressure from others. That’s when someone can claim:

• you didn’t understand the document

• you didn’t understand your property

• you didn’t understand your people

• you weren’t acting freely

And once that argument is made, regardless of merit, your loved ones may be stuck defending your choices in a courtroom instead of simply carrying them out.

The ideal moment to prepare your Life Essentials documents is when your mind is clear, your footing is steady, and your choices are truly your own.Your future self and the people you care about will be grateful you didn’t wait.

So, what are you waiting for?

Denise Bonk, Attorney at Law

317-202-5773 (talk or text available)

denise.bonk@outlook.com

3250A West 86th Street, #1291

Indianapolis IN 46268

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