Don’t Confuse Testamentary Intent with Testamentary Capacity When Analyzing a Last Will & Testament

HNWEstate Administration and Probate, Last Wills and Testament

  • Last WillWhen contesting a Last Will, the testamentary capacity of its maker is often disputed.
  • NJ law makes clear the differences between testamentary capacity and testamentary intent.
  • In a recent case, a trial court ruled that a 2013 will was invalid because its maker lacked testamentary capacity, specifically finding that he “would not have been able to understand the terms of the document without explanation to him, and no such evidence was presented.” The Appellate Court disagreed and reversed the decision.

NJ holds a presumption in favor of testamentary capacity.  However, a party may challenge that presumption and invalidate a will by proving lack of testamentary capacity.  To prove a lack of testamentary capacity, a party must show, by a preponderance of the evidence, that a testator did not have sufficient memory and mind at the time of executing a will to generally know (1) the property owned, (2) the intended beneficiaries of that property, and (3) the nature of the instrument being executed.  As was explained by the court, the presumption in favor of testamentary capacity is not rebutted merely by the absence of evidence that a testator understood the particular testamentary document at issue.

Testamentary capacity is tested at the time a testator executes a will.  In determining such capacity, the trial court may consider evidence of the testator’s state of mind before, at the time of, and after the will is executed.  This includes evidence of any factor that may otherwise bear on mental capacity, such as age, impairment of mental faculties, memory loss, illness, physical condition, sedation, or other use of drugs or medication.  Evidence of any one or more of these factors alone, however, does not rebut the presumption of testamentary capacity when there is no indication that, at the time the testator executed a will, such factor impaired the testator or his or her understanding of the predicate knowledge of testamentary capacity.

Testamentary capacity is not defined by the testator’s understanding of the testamentary document.  In fact, NJ’s legal standard for determination of testamentary capacity has never turned on the complexity of the document at issue, the difficulty of its terms, or the testator’s understanding of it.  “The standard of testamentary capacity does not mean that [the] testator must be able to understand the meaning of all the technical legal terms which are employed by counsel in drafting [the] testator’s will, under his general instructions.”  That would be too high a burden to require that the testator be able to fully comprehend the document he or she signs.  Such a requirement would conflict with our standard for testamentary capacity, which only requires that a testator “generally” understand the nature of the instrument being executed.

“It is sufficient if [the] testator understands the legal effect and intent of the instrument as a whole, and if the instrument is so drawn as to express [the] testator’s intent.

A court will be careful to distinguish between testamentary capacity, as explained here, and testamentary intent.

A testator’s knowledge of the contents of a will, while a predicate for testamentary intent, is not dispositive whether the person had testamentary capacity on the date he or she signed their Last Will or trust.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Probate Estate LitigationAttorney

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