[This post is Part Four in a four-part series discussing a variety of ways an estate plan can be challenged. You can find links to the other posts in the series here.]

So your parents have a Last will and Testament or a Living Trust. Great. It was signed by all the proper parties, contains the proper language, and appoints the proper people. Wonderful. And to top it all off, the attorney's gave you an unbelievable deal. Excellent (unlikely, but excellent). The problem? Those documents can still be thrown out by the court if your parents lacked one key thing: testamentary capacity.

What is Testamentary Capacity?

We lawyers sure do like our big words. Fortunately for everyone, testamentary capacity boils down to a pretty simple idea: Does the person signing a Will or Trust understand what they're signing? To have testamentary capacity in Oklahoma, the testator (the person signing the Will or Trust) must understand, in a general way, (1) the quality and quantity of his or her property (sometimes called their "bounty"), (2) the natural objects of his or her bounty (i.e., who should logically inherit their property), and (3) the legal effect of signing the document.

Seems simple enough, right?

It is important to understand that testamentary capacity is different than what people usually think of as legal capacity or capacity as it relates to a guardianship or other legal proceeding. The fact that a person was found incompetent to handle his affairs two years ago does not mean he lacks testamentary capacity today. Likewise, a person's ability to manage his affairs two years ago does not mean he has testamentary capacity today. What matters is the individual's capacity at the moment he or she signs an estate planning document.

How is testamentary capacity determined?

Lawyers also like "tests." Not actual tests, of course, but rules that guide our interpretation of the law. To determine testamentary capacity, we use a category of test called a "totality of the circumstances test" (so named because it asks us to look at the totality of the circumstances). Oklahoma courts have held that the following factors or circumstances may be considered (but do not have to be considered and need not be the only factors considered) when determining the existence of testamentary capacity: (1) evidence of the testator's mental state both before and after execution of the Will; (2) the testator's appearance; (3) the testator's conduct and actions; (4) the testator's habits; and (5) the testator's conversation.

So, practically speaking, how can we know whether an individual has testamentary capacity at the time they sign their documents? That is the operative question, as it is definitely better (and, likely, less expensive) to find out the answer now rather than years later in probate.

There are a number of ways a qualified estate planning attorney can make his or her own determination regarding the testator's capacity, although there is no strict "test" a client must pass before he or she can sign a document. Some common questions come from an evaluation called the Mini-Mental State Evaluation (MMSE). Often used to decide whether an individual has capacity to testify at trial (which is different than testamentary capacity), this evaluation asks the individual to identify the date and their location, to repeat a certain phrase, to count backwards, etc. Attorneys often work these and other similar questions into their conversation with a client if there is a possibility he or she may lack testamentary capacity.

Can you change your estate plan if you lack capacity?

The short answer is "no." Testamentary capacity is necessary for any testamentary document to be valid.

However, there are other ways to make changes to the testator’s estate. For instance, if the testator has a Durable Power of Attorney appointing someone as their attorney-in-fact (and if that document gives the attorney-in-fact the ability to do so), that individual can transfer property, enter into contracts, and even establish a trust for the testator's benefit.

Still, these transactions are scrutinized very closely by courts, and if the testator does not have a Durable Power of Attorney, they may be out of luck.

Could a loved one’s estate plan be challenged?

Testamentary capacity is a crucial estate planning concept to understand. If you are concerned that a loved one may lack (or may have lacked) testamentary capacity to execute an estate planning document — or to determine whether you should challenge an estate planning document in probate — contact the experienced Oklahoma City probate attorneys at Postic & Bates today for a free, no-obligation consultation appointment.

David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.

You can email David through our Contact Us page or by calling our office at (405) 691-5080.

[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]