Testamentary Capacity

Testamentary capacity exists when a person making "the will" understands the nature of creating a will, has a general understanding of what he/she possesses, and knows who the members of the immediate family or other "natural objects of his or her bounty" are. The ability to resist pressure or domination is of fundamental importance in testamentary capacity. 

• The person making the will should be able to understand that it will come into effect on their death and that it can be revoked or changed before his/her death. 
• The person is aware of the extent of the property she/he owns, has knowledge of its approximate value, and is aware of other savings and pensions, etc. 
• The testator understands who gets what and who the potential heirs are. 
• The decision has not been influenced by mental illness. 

Proof for testamentary Capacity

Those who contest a will for lack of testamentary capacity must typically show that the decedent suffered from mental unsoundness that left them unable to remember family members or caused them to hold insane delusions about them. Dead Man's Statutes sometimes restrict evidence that can be admitted concerning transactions with the decedent.

Lawyers for people whose testamentary capacity might be called into question often arrange for a will execution to be videotaped. In the video, they ask the testator about his property and about his family and go over the contents of the testator's will. Along with resolving an examinee's testamentary capacity, forensic specialist observers for signs of undue influence by a concerned party that exploits an emotionally vulnerable individual who might otherwise be cognitively intact. The testamentary capacity matter is most frequently raised posthumously when an aggrieved heir contests the will entered probate. For this reason, the forensic psychiatrist or forensic psychologist studies the testatrix’s cognition through videotape record of the drafting of the will, or by reviewing email, letters, and other records. Even when a testator is found to have lacked testamentary capacity because of senility, loss of memory because of the aging process, infirmity or insanity, courts will sometimes rule that the testator had a "temporary period of lucidity" or a "lucid moment" at the time of the execution of the testamentary instrument. Such a finding will validate a will that would otherwise be denied probate. A way to forestall a will contest would be to have a self-proving will, in which a declaration of facts of the witnesses to the will specifically swear or affirm that the will was prepared under the supervision of an attorney.

Source: Wikipedia