Testamentary capacity is the soundness of mind required of a “testator,” a person who is executing a Will. In Washington State testamentary capacity is met when, “A person … if at the time he [or she] assumes to execute a will he [or she] has sufficient mind and memory to understand the transaction in which he [or she] is then engaged, to comprehend generally the nature and extent of the property which constitutes his [or her] estate and of which he  [or she] is contemplating disposition to recollect the objects of his [or her] bounty.” In re Bottger’s Estate, 14 Wn.2d 676, 685, 129 P.2d 518 (1942).
The Bottger ruling adopts the above as the standard by which Washington courts must measure the facts of each case when a testator’s capacity to execute a valid Will is in question. When someone challenges the validity of a Will by citing lack of capacity of the testator, the court will look to evidence of the testator’s mental and physical condition, the testator’s actions at the time of execution, and determine whether or not the testator had sufficient capacity to execute the Will. A court will invalidate a will if it finds that the testator lacked capacity.
Testamentary capacity can change from day to day. For example, if a dementia patient is having a “good day,” and demonstrates clarity of mind and memory then a court may find that he or she possessed testamentary capacity. Further, a person demonstrating some impairment of speech or thought process, or some physical impairments, may still have sufficient capacity to execute a valid Will.
The requirements to sign a Durable Power of Attorney differ from the requirements for testamentary capacity. Therefore, a person may be able to sign a Durable Power of Attorney even if he or she cannot sign a Will.
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