New York Estate Planning & Elder Law Blog
In order to make and execute a valid will under New York law, a person must meet certain requirements. One of these requirements is that the testator or person creating his or her will have testamentary capacity. Testamentary capacity refers to a person’s ability to understand and execute a will. Generally, most people over the age of 18 who have reached legal adulthood are considered competent to make and sign a will. They understand the nature of the document they are creating and signing, the property that will be passed and understand the effects that the document will have after their death.
One of the most common bases for contesting a will is that a person lacked testamentary capacity and for good reason. There are many ways a person can lack testamentary capacity and many of them relate to illnesses and conditions that are common in old age. In particular, challenges arising out of accusations of the testator being mentally incompetent or under undue influence are not rare, especially if the testator is of advanced age.
Mentally Incompetent
Unfortunately one of the hallmarks of old age for many people is becoming feeble minded, whether it be issues with memory, being unable to take care of yourself or unable to make intelligent decisions or choices. When this happens to a person, there may be an issue of whether or not the person is mentally incompetent. In order to make and execute a valid will, the person must be mentally competent. If the person suffers from dementia or an illness that affects their judgment, chances are that the person may lack the capacity to make and execute a valid will. If someone who is mentally incompetent creates and executes a will, there is a high probability that the will is invalid.
Undue Influence
A will may also be found to be invalid if the person creating the will was under undue influence when creating it. Undue influence is an issue when the testator’s free will is essentially supplanted with someone else’s, usually a caretaker or someone the testator trusts greatly. People who have diminished capacity, such as an elder who requires care and may not be able to make their own decisions, are very susceptible to undue influence.
While a person can create a will at any age 18 or over many do not take that step until well into their twilight years. The later in your life that you wait to create a will even if it is very basic, the more likely that your capacity to create one will be questioned.
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Springing and Durable Powers of Attorney