Testamentary Capacity

  • Bruce Dennis Sales
  • D. Matthew Powell
  • Richard Van Duizend


Testamentary disposition is the passing of property upon the death of the owner to his or her beneficiaries or heirs in accordance with the terms of a will or last testament.1 State statutes list certain requirements which must be satisfied if a will is to be considered valid. Among these is the requirement, which virtually all state statutes impose,2 that the testator, the writer of the will, must possess testamentary capacity, i.e. be mentally competent at the time of executing the will. This requirement seems to reflect two public policy objectives. First, the state, acting as parens patrie, is said to have an interest in protecting persons from testamentary acts which would not be undertaken had the person a full understanding of those acts and their consequences. Thus, the requirement of testamentary capacity reflects the belief that the testator should know and understand what he or she is doing and what the act will accomplish after his or her death.


Supra Note Disable Person Mental Disability South CAROLINA State Statute 
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  1. 1.
    This passing of property occurs through the probate process. Probate refers to the “proving” of a will, i.e., the establishing in probate court that the will meets all requirements for a valid will. The term probate is popularly used to refer to the administration and distribution of a testator’s estate as well. Where there is no will or the will is declared invalid, state intestacy (meaning without a will) statutes govern the distribution of the property.Google Scholar
  2. 2.
    See State Statute Chart infra. See also Weihoffen, Mental Incompetency to Make a Will, 7 NAT. RESOURCES J. 89 (1967). This article contains a thorough discussion of testamentary capacity.Google Scholar
  3. 3.
    See Green, Public Policies Underlying the Law of Mental Incompetency, 38 MICH. L. REV. 1189, 1219 (1940).Google Scholar
  4. 4.
  5. 5.
    Epstein, Testamentary Capacity, Reasonableness and Family Maintenance: A Proposal for Meaningful Reform, 35 TEMP. L.Q. 231, 232 (1962).Google Scholar
  6. 6.
    Id. at 241.Google Scholar
  7. 8.
    See Weihoffen, supra note 2 and cases cited therein.Google Scholar
  8. 8.
    In re Estate of Glesenkamp, 378 Pa. 635, 107 A.2d 731 (1954). But see In re Estate of Teel, 14 Ariz. App. 371, 483 P.2d 603 (1971).Google Scholar
  9. 9.
    Epstein, supra note 5, at 235.Google Scholar
  10. 10.
    Id. This is a minority view. See cases cited therein.Google Scholar
  11. 11.
    Maryland and the District of Columbia have required that the testator be of sound mind and have the ability to execute a valid deed or contract. Maryland’s statute was recently revised, omitting the above language and substituting “legally competent to make a will.”Google Scholar
  12. 12.
    See Weihoffen, supra note 2, at 91 and cases cited therein.Google Scholar
  13. 13.
    Id. See supra note 11.Google Scholar
  14. 14.
    See Note, 16 S. CAL. L. REV. 355 (1943). The District of Columbia is an exception in this regard, requiring that one be competent to execute a valid contract in order to execute a will. D.C. CODE §18–102 (1970).Google Scholar
  15. 16.
    Compare the test of testamentary capacity outlined below with the materials in Chapter 7: Guardianship and Conservatorship.Google Scholar
  16. 16.
    See Weihoffen, supra note 2, at 93.Google Scholar
  17. 17.
    Id. at 94.Google Scholar
  18. 18.
    Id. at 90.Google Scholar
  19. 19.
  20. 20.
  21. 21.
    ATHINSON, HANDBOOK OF THE LAW OF WILLS 51 (ed. 1953).Google Scholar
  22. 22.
  23. 23.
    Weihoffen, supra note 2.Google Scholar
  24. 24.
    Note, Psychiatric Assistance in the Determination of Testamentary Capacity, 66 HARV. L. REV. 1116, 1116–17 (1953).Google Scholar
  25. 25.
    See State Statute Chart infra. Google Scholar
  26. 26.
    Epstein, supra note 5, at 236.Google Scholar
  27. 27.
    See e.g., In re Safer’s Will, 19 App. Div. 2d 725, 242 N.Y.S. 2d 445 (1963).Google Scholar
  28. 28.
    Epstein, supra note 5, at 231.Google Scholar
  29. 29.
    Note, supra note 24, at 1118–19.Google Scholar
  30. 30.
  31. 31.
    Hulbert, Probate PsychiatryA Neuro-Psychiatric Examination of Testator from the Psychiatric Viewpoint, 25 ILL. L. REV. 288 (1930). The author was a practicing psychiatrist dissatisfied with the probate procedures of his time, most of which are still operative today.Google Scholar
  32. 32.
    Id. See also Stephens, Probate PsychiatryExamination of Testamentary Capacity by a Psychiatrist as a Subscribing Witness, 25 ILL. L. REV. 276(1930).Google Scholar
  33. 33.
    As previously noted, the tests utilized for determining testamentary capacity are well suited for carrying out the public policies upon which they are based. It is not suggested that these be replaced de facto by medical categorizations of mental disability whose purpose is different. Indeed, it is this type of decision-making by classification which is to be avoided.Google Scholar
  34. 34.
    Hulbert, supra note 31 ; Stephens, supra note 32; Note, supra note 24.Google Scholar
  35. 35.
    Stephens, supra note 32, at 286.Google Scholar
  36. 36.
    See SINGER & KROHN, INSANITY AND LAW 343 (1924).Google Scholar
  37. 37.
    Note, supra note 24, at 1118.Google Scholar
  38. 38.
  39. 39.
    Epstein, supra note 5, at 231–32. Georgia has even codified this “reasonableness” evaluation. GEORGIA CODE ANN. §113–205 (1975) states in part, In case of doubt as to the extent of (the testator’s disability), the reasonable or unreasonable disposition of his estate should have much weight.Google Scholar
  40. 40.
    See e.g., Schneider v. Vosburgh, 143 Mich. 467, 106 N.W. 1129(1906). See also Athinson, supra note 21.Google Scholar
  41. 41.
    Epstein, supra note 5, at 248.Google Scholar

Copyright information

© Springer Science+Business Media New York 1982

Authors and Affiliations

  • Bruce Dennis Sales
    • 1
  • D. Matthew Powell
    • 1
  • Richard Van Duizend
    • 1
  1. 1.Developmental Disabilities State Legislative Project of the American Bar Association’sCommission on the Mentally DisabledUSA

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