Connecticut law sets forth several requirements for a valid will. One of these states that the testator must be of sound mind. It can be difficult to arrive at a precise definition of the exact line that marks a lack of capacity.
Descendants who are unhappy with a will’s provisions may attempt to challenge it based on lack of testamentary capacity. While it is not possible to guarantee a lack of litigation, there are steps a testator can take to guard against potential attacks on the will.
Basic definition of capacity
Generally, testamentary capacity means understanding the type and extent of one’s property, who one’s family members are and what it means to make a will. The law does not require being able to list every bank account and the address of every parcel of real estate. A person does not have to know his or her specific net worth down to the penny. It is enough to know the approximate sort and value of the assets.
Other criteria for capacity may not apply
Courts have ruled that the threshold for testamentary capacity rests below the capacity to enter into contracts and conduct business. A person whom a court has officially deemed unable to make contracts may still possess the capacity to make a will. Being under conservatorship is also not conclusive evidence that a person does not have testamentary capacity.
Another common issue is the potential effect of a diagnosis of a disease whose symptoms typically include cognitive decline. Such a diagnosis also does not serve as conclusive evidence of incapacity. In many cases, cognitive decline proceeds gradually and a person may receive the diagnosis long before getting to the point of incapacity. People with cognitive conditions may also experience days when they possess the requisite capacity and days when they do not.
Addressing potential challenges
While a diagnosis or a ruling of another type of incapacity do not prove the testator was not of sound mind, they can serve as evidence that this may have been an issue. The proponent of the will may have to counter these arguments. When these matters are of potential concerns, some testators opt to take steps such as undergoing a cognitive evaluation and getting a detailed report.