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The Threshold for Testamentary Capacity – The Sound Mind Dilemma

Jeff Cole
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Partner at Zimmer, Duncan & Cole

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Jeff Cole
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On June 16th, 2010, the Supreme Court of South Dakota issued a ruling on a Will Contest case in Re. Estate of Berg that does a good job of explaining what it means to have “testamentary capacity.”  In South Dakota, you have to have testamentary capacity in order to make a valid will.  What this basically means is that you must meet a certain level of mentally competentancy. 

An individual 18 years or older who is of sound mind may make a will.  Sound mind, for the purposes of testamentary capacity, as someone who without prompting, is able to comprehend the nature and extent of his property, the persons who are natural objects of his bounty, and the disposition that he desires to make of such property.  In other words, the individual must have an idea of what he owns, the people who would normally inherit if a will didn’t exist, and have a firm understanding of how he wants his property to be divided or transferred. 

Whether or not someone is of sound mind is a difficult question to answer. The Court doesn’t look at any one moment in time, but considers the condition of the person’s mind a reasonable length of time before and after the will is executed.  Just because a person may suffer from insane delusions or hallucinations, does not mean he or she does not possess sound mind.  The key is whether or not the delusions or hallucination have an effect on the will.  For example, a person may hallucinate that his father is in fact a character from a television show, but so long as this fictional father is not named in the will, the person may still be judged to have sound mind. These were the circumstances in the South Dakota Supreme Court decision. 

If you think a loved one may have lacked testamentary capacity when he or she executed a will, it is a good idea to share these facts with an attorney.  A competent, able, and experienced attorney will be able to give you a better sense of whether or not the individual may have not been of sound mind.

Category: Will Contest

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