testamentary capacity

What It Means to Have “Testamentary Capacity” in Virginia?

A common ground for contesting a will is to argue the decedent—the person who made the will who has now died—lacked the testamentary capacity to do so. But what exactly is “testamentary capacity”? “Testamentary capacity” refers to a person’s legal ability to execute a valid last will and testament under Virginia law. There are two basic components to testamentary capacity: age and being of sound mind. First, unless the person making the will is an emancipated minor, no one can make a will unless they are at least 18 years old.

The second component of testamentary capacity can be more complicated: How does one determine if the decedent was of sound mind when the will was executed?

To have the mental capacity to make a will, one must know i) what they are doing (that they are making a will), ii) know what their property is, iii) know the “natural objects of their bounty” (which means that they know who their family is even if they intend to disinherit some or all of them), and iv) have a plan to dispose of the property and how the plan will work.   The person must have testamentary capacity when the will was signed; their capacity at  death is not relevant.

In addition, the person writing the will must not be under fraud, duress, or endue influence when designing and executing their will.  The creation and execution of the will must be a free and voluntary act.

So how does one prove the decedent was of “sound mind”? In general, the proponent of the will does not have to prove it. To the contrary, a will that conforms to the rules for will execution that is submitted for probate in Virginia is presumed to be valid and the decedent is presumed to have had testamentary capacity when executing it.  The person who wishes to contest the will must provide evidence the decedent lacked testamentary capacity or was subject to fraud, duress, or undue influence.

Speak with an Estate Planning Attorney If You Have Questions about Testamentary Capacity

Ideally, the best time to make a will is before any questions arise about testamentary capacity, or lack thereof. To create a comprehensive estate plan and to learn more about your estate planning options the experienced Virginia estate planning attorneys at Promise Law can help. Call us today at (757) 690-2470 to learn more.


Join us for a workshop to learn more about how to address your legal needs.
We offer complimentary consultations for all areas of practice. Contact us today.