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Testamentary Capacity

What Is It And When Does One Not Have It

Testamentary capacity is a legal term referring to an individual's legal and mental ability to sign or make changes to a will. Unfortunately, while the concept is a legal one, Colorado law provides little in the way of precisely measuring it. Consequently, proving someone’s lack of testamentary capacity at the time of signing a will can be a complex undertaking.

While adults are generally presumed to be capable of understanding and making a valid will, there are times when families or other interested parties question whether the decedent had the capacity to have a full understanding of what they were doing or if another party influenced them. In these cases, family members or other potential beneficiaries may seek to contest the will if they have questions about its validity.

Under What Conditions Can a Will Be Contested?

When an individual dies, their will usually must be validated by the probate courts. If a beneficiary or other interested person is concerned about the validity of a will or disputes arise, it must be contested with the court and significant evidence must be provided.

In order to contest a will in Colorado, one of the following must be established and proven to the court:

  • The will-maker, or testator, lacked testamentary capacity and did not understand the nature of what they were doing.
  • Another party inappropriately influenced the decedent.
  • The will was made under duress.
  • There was a mistake made in the drafting or signing of the will.
  • The will was fraudulently made.
  • The will was revoked, and/or a new will exists.

In most cases, family members will contest a will on the grounds of undue influence or lack of testamentary capacity.

What Determines Testamentary Capacity?

The law makes the presumption that legal adults have sufficient testamentary capacity to understand what they are doing when making a will.

If family members or other potential beneficiaries choose to contest a will due to lack of testamentary capacity, the court will need to make an assessment of that individual’s testamentary capacity. The beneficiaries or other interested parties have the legal burden of proof that the decedent did not have the capacity to understand what they were doing at the time they were doing it.

This can be a complicated undertaking. It can be difficult to prove someone’s state of mind and capacity when making a will, as it may have been executed years or even decades earlier.

What is “Sound Mind” in the State of Colorado?

In the state of Colorado, CRS 15-11-501 states that any individual that is eighteen years of age or older of sound mind can legally make a will. It then becomes necessary to define “sound mind.”

The concept of sound mind has been historically vague in many jurisdictions. The Colorado Supreme Court uses two legal tests for establishing the mental state of an individual at the time of making the will. Under Colorado law, determining a sound mind requires “the presence of Cunningham factors and the absence of insane delusions.”

The Cunningham Test sets out five benchmarks for the determination of a sound mind:

  • The will-maker, or testator, understood the purpose of making a will.
  • The testator comprehended the full extent of the property they are leaving.
  • The decedent understood the consequences of making the will and how their assets would be distributed.
  • The will-maker comprehended which individuals are considered their natural heirs.
  • The decedent signed the will based on their own wishes and not those of someone else.

The Insane Delusion Test refers to the testator’s sense of reality. Specifically, it is defined as a “persistent belief, resulting from illness or disorder, in the existence or non-existence of something that is contrary to all evidence.”

The Colorado Supreme Court has also recognized that a testator may have been under the influence of prescription medications at the time of signing the will which may have interfered with their mental state.

Consequently, adults in Colorado are presumed to be competent to make a will unless a licensed medical or psychological professional has diagnosed mental incompetence under those two legal tests.

What Are Signs of Incapacity in a Loved One?

In our modern world, we are currently seeing a rise in personal wealth as well as a rise in dementia. Consequently, testamentary capacity is an increasing problem in matters of probate litigation.

An individual is generally considered incapacitated when he or she can no longer has sufficient mental capacity to take care of their own personal affairs or well-being. This can happen as older adults age and may succumb to dementia or mental disorders. Incapacity can also refer to someone who has suffered a brain injury, is unconscious or has another medical condition that renders them incapable of making decisions for themselves.

Mental capacity of an individual can be a difficult thing for families to judge, particularly when it comes to an elderly loved one whose cognitive decline has been gradual. As they age, elderly adults may become more isolated, leaving family members unaware of mental incapacities.

Family members and caregivers should remain aware of signs of potential incapacity of loved ones, including;

  • Repeating the same information and questions
  • Falling behind on paying bills
  • Confusion with basic concepts
  • Struggling to make simple decisions
  • Making poor financial decisions
  • Unexplained panic
  • Short-term memory issues
  • Hallucinations
  • Cognitive impairment from prescription drugs

Family members should heed warning signs instead of dismissing them as “old age.”

During periods of cognitive decline, an individual who may have been highly engaged in their own financial and day-to-day life may start ceding it to others, or they may begin making unreasonable changes to estate planning documents.

When Should a Family Challenge a Will Due to Testamentary Capacity?

If family members or other beneficiaries suspect that their loved one’s will was made when that person lacked testamentary capacity, any challenge to the validity of the will must offer professional evidence of incapacity to the court. The laws in Colorado have procedures that must be followed for interested parties to contest the validity of the will in a testamentary proceeding.

A petition must be filed with the court, and the petitioner will be required to state their relationship to the testator as well as objections to the will and reasons why they believe that the will is invalid. Proving testamentary capacity can be complicated and will require the testimony of physicians, nurses, or mental health professionals to prove the mental and physical capacity of the testator. Based on the evidence offered, the court will decide whether the individual was of sound mind at the time of execution of the will.

Getting the Legal Assistance of an Experienced Colorado Probate Litigation Attorney

If you are concerned that your loved one may not have been of sound mind at the time of execution of their will, it is critical to get the assistance of an experienced Colorado probate attorney to get skilled guidance and legal representation. Contact the Colorado Springs probate lawyers Patterson Weaver Law, LLC for a free consultation to understand how testamentary capacity works in Colorado and how to legally challenge the validity of a will.

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