Testamentary Capacity

There are several ways to contest the validity of a will. One way is to allege that the testator lacked testamentary capacity. The drafting attorney must confirm that her client has testamentary capacity. The ethical obligations of the drafting attorney for working with existing clients who begin to show signs of diminished capacity are beyond the scope of this blog.

Generally, testamentary capacity means that the person was of sound mind – that the testator (the person writing the will) had the required level of understanding required under Colorado law sufficient to make a will.

Under Colorado law, a court will consider several factors when determining whether the testator was of sound mind when the will was made. These factors include whether the testator understood:

• The contents of his or her will and the effect signing the will had.

• The nature of his or her assets. Generally, this means being able to identify the assets one owns (for example, a house, a life insurance policy, stocks and bonds, bank accounts) and knowing the approximate value of the assets or being able to refer to a statement with the approximate value.

• Who the heirs are (who would inherit in the absence of a will), who the beneficiaries under the will are, and the differences between these scenarios, if any.

If a court finds that the testator had a general understanding of these factors, the testator is deemed to have testamentary capacity. If there are no other issues regarding the validity of the will, the court will deem the will is valid and enforceable.