Good News! You Don’t Have to Be Sane!

Monday, June 30th, 2014

It is customary for a last will and testament to begin with a statement that the person making the will (the “testator”) is “of sound mind” or words to similar effect. Although it is a nice custom (and one that we follow), it has at least two oddities. First, it proves little, since schizophrenics think they are of sound mind too. Second, and more importantly, the testator does not necessarily have to be of sound mind to make a will!

In order to make a valid will, a person must have what is called “testamentary capacity,” which is not necessarily the same thing as being of sound mind. A person has testamentary capacity if he or she has a general awareness of three things:

• The nature and extent of his or her assets;
• The “natural objects” of his or her “bounty” (meaning immediate family or other heirs); and
• The contents and effect of the will.

As long as you are aware of these three things, you are competent to make a will, even if you fail some other test for sanity.

For example, multiple court cases extending back many decades have established that a will cannot be set aside merely because the testator was having insane delusions when he executed the will. To invalidate the will, it must also be shown that the will was the product of those delusions.

So here’s a good rule of thumb: You can’t make a will leaving your estate to an invisible six-foot-tall rabbit, but its fine if he sits next to you while you sign.