The Importance of Timing: Understanding Testamentary Capacity

Not everyone is legally permitted to create a Will. To do so, you must possess testamentary capacity, which is the legal standard of competence required to draft and execute a valid document. If you do not meet specific criteria, your Will may be deemed invalid; for this reason, it is vital that you do not delay estate planning until your health or cognitive abilities have declined.

It is important to note that "competence" is not always an all-or-nothing state. There are varying levels of mental capacity, and under certain circumstances, an individual may still be able to execute a Will despite having some cognitive challenges. In fact, the legal threshold for testamentary capacity is generally lower than the standard required to enter into business contracts or complex financial dealings.

This same principle of varying capacity often applies to healthcare directives and living Wills as well. However, the legal complexities involved mean you should never wait until a crisis occurs. A practical rule of thumb: Your first major deadline for preparing a Will should be the birth of your first child.

Call our offices today at 502.423.1600 for expert consultation on estate planning.