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When an Elder Law Attorney meets with his or her client to execute a will, one of the most important requirements is that the client has capacity. Most people talk about capacity as a rigid black line, but capacity really varies depending on the person’s abilities and the function for which capacity is required.
Capacity required to execute a will is different than other legal activities one may engage in. For example, the capacity to enter into a contract is higher than the capacity required to execute a will.
In Colorado, capacity to execute a will requires the willmaker to have sufficient understanding regarding the extent and value of his or her property, the number and names of the persons who would naturally have some claim to that property, and how exactly they want their property to be distributed. It also requires that the will being executed distributes the property the way the testator wants it to be distributed without undue influence from anyone else.
It is obvious from these rules that signing a will does not require a great deal of capacity. The fact that the next day the testator does not remember executing the will and is not sufficiently “with it” to execute a will that day does not invalidate the will. What matters is that he understood it when he signed it.
As a practical matter, in assessing a client’s capacity to execute a legal document, attorneys generally want to make sure that no one will be able to challenge the transaction. For example, if a client of questionable capacity executes a will giving her estate to her husband and then to her children if he is no longer living, it’s unlikely to be challenged. If, on the other hand, she executes a will giving her entire estate to one daughter with nothing being left to her other children, the attorney must make sure he can prove his client’s capacity.
While the standards may seem clear, applying them to a particular client may be difficult. The fact that a client does not know the year or the name of the president may mean that she does not have capacity to enter into a contract, but does not necessarily mean she can’t execute a will. The determination mixes medical, psychological and legal judgments. It must be made by an attorney based on information gleaned by the attorney in interactions with the client, from other sources such as family members and social workers, and, if necessary, from medical personnel. Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment. However, they can provide a professional evaluation of the person that will help an attorney make this decision.
Issues of determining legal capacity can be tricky and should not be addressed without the help of a qualified professional. Our staff has over 100 years of combined legal experience and can help you navigate the complicated legal issues you face. Contact us today for a FREE consultation to discuss your specific needs.
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