When someone comes into our office to start or update their estate plan, one important item that our attorneys are considering is whether they are mentally competent to make these decisions. Someone must have testamentary capacity in order to make a valid will, meaning that they are of sound mind and have an understanding of what they’re doing and what those actions mean.
Testamentary Capacity in Utah
Utah statutes and case law have a specific definition of testamentary capacity. Specifically, the testator must be able to remember the “the natural objects of his bounty, recall to his mind his property, and make disposition of it understandingly, according to some purpose or plan formed in his mind.” In re Swan’s Estate, 293 P.2d 682, 684 (Utah 1956). This means that the person creating the will must know who their closest living relatives are who would normally be the heirs of the estate and are able to clearly indicate how they want their property to be distributed. Mere eccentricities and even lower than normal capacity are not indicative of a lack of testamentary capacity.
As part of creating or updating an estate, our attorneys take the time to talk to someone about these details. They try to get a full picture of the person’s family including spouse, children, grandchildren, siblings, and others who might normally be considered in a will. While they do not have to specifically be heirs in an estate plan or beneficiaries of a trust, it is important that the testator know who they are and, if they are choosing to leave someone out, they are doing so quite intentionally.
As the plan is being constructed, we also want to make sure the individual is clear about how their assets will be distributed and that the plan meets their goals. Further, they understand how the plan will play out for their heirs. For example, leaving someone expensive real estate with no cash assets to support the property may result in a fire sale if the individual cannot themselves afford the asset.
Testators can appear completely normal, however, and still lack testamentary capacity. This could include someone who is suffering from delusions, mental incapacity, or hallucinations. In these cases if documented, even if the individual was able to convince an attorney they have the ability to make a will, it could be challenged and overturned.
Undue Influence
It is also important to ensure that the testator is not facing undue influence in creating or changing their estate plan. This occurs when a person who is in a position of trust is able to exert their influence over the testator and get them to change their will to be something other than what the testator actually wanted. This type of behavior is suspected when the testator leaves a significant portion of their estate to a confident over their natural heirs, especially if the confidant advised the testator on how they should administer their assets.
At Dunn Law Firm, we strive to make sure your estate plan is comprehensive and includes all the details necessary to protect your assets and distribute them to your family and preferred charities. We take the time to discuss with you your family and goals and make sure you understand how your choices will impact those you love. To learn more, reach out to the Dunn Law Firm by calling (435) 628-5405 to set up a free consultation today.
