How Is Capacity to Make Testamentary Dispositions Assessed?
Wills and Inheritance Agreements
Prepared by: Constantinople
Short Answer
Capacity for a will and an inheritance agreement has different requirements. Examination concerns the person's position at the transaction date. We assess age, discernment and, where relevant, restriction through documents. We distinguish medical-record scope, parties' positions and the basis of incapacity allegations to explain research needed.
The testator may be elderly, undergoing treatment or subject to a restriction order. These facts matter but answer different questions. A party's role in an inheritance agreement must also be identified. We determine type and date first, then compare records showing capacity for that act. Present health is not equated with capacity for a disposition made years earlier.
The initial review and second opinion are paid services. The scope, fee and timetable are agreed in writing before work begins.
Wills and Inheritance Agreements Have Different Requirements
TMK 502 requires discernment and completion of fifteen years for a will. TMK 503 requires discernment, adulthood and absence of restriction for an inheritance agreement. General assessment therefore cannot precede identification of the transaction. Each person's role is examined separately.
Discernment Is Investigated for the Particular Act
TMK 13 regulates discernment through the ability to act reasonably. Assessment is not reduced to diagnosis or age. The effect of illness, treatment and other facts at disposition is investigated. We do not resolve medical questions by guessing from missing records.
The Disposition Date Remains Central
TMK 557 makes execution while lacking capacity a ground for annulment. Medical records before and after are assessed chronologically. A report's date, examination and question matter. Witness information illuminating the will date is considered with other evidence.
Capacity and Other Allegations Are Distinguished
Alleged non-authorship concerns form and attribution; pressure concerns consent. Neither replaces capacity analysis. Separate grounds under TMK 557 must be correctly identified. Multiple allegations require their own documents and factual explanations.
What Do We Examine in Your Matter?
We Identify the Act and Parties
We determine whether the instrument is a will or inheritance agreement and who makes the disposition, reading civil registration and decisions accordingly.
We Arrange Medical Records
We investigate examinations, treatment and medication around the date, checking later reports' foundations to identify gaps and conflicts.
We Explain Evidential Limits
We distinguish direct witness observations, the report's question and unexplained points, specifying expert examination needed.
Frequently Asked Questions
Can a restricted person never make a will?
Will and inheritance agreement capacity are governed separately. No single answer is given without examining the restriction's ground and discernment at the will date.
Does a report on the transaction day settle everything?
It is important evidence, but its scope, medical basis and relation to other records must be seen. The whole transaction-date file is assessed.
Related Inheritance Topics
Related Questions
Reference Sources
TMK 13, 502–503, 557–559
TMK 502; medical examination directed at the transaction date
Tell Us About Your Matter
The initial review and second opinion are paid services. The scope, fee and timetable are agreed in writing before work begins.