Drafting a will or trust can feel straightforward until doubts arise about the signer's mental ability. Loved ones, caregivers, or even the drafting lawyer may notice small changes that raise big questions.

At Peach State Wills and Trusts©, we focus on helping Georgians craft estate plans to document their wishes to ensure that their estate is distributed consistent with those wishes. However, for someone to sign a will, they must have the legal capacity to do so. Otherwise, the will may be invalidated and deemed not valid by a probate court when challenged, due to a lack of capacity of the testator (the person making the will).

This article explains what testamentary capacity means under Georgia law, and some red flags that might suggest a lack of capacity. The material below is for learning purposes only and is not legal advice for any specific situation.

Recognizing Potential Warning Signs of Incapacity

Georgia courts presume an adult has capacity unless evidence shows otherwise. Still, certain patterns often prompt further review.

Medical Diagnoses and Cognitive Decline

Conditions like Alzheimer's disease, vascular dementia, brain injuries, and serious psychiatric disorders can impair memory, reasoning, and judgment. A neurologist's report or recent neuro-psychological testing that records a significant decline around the date of the will can become a cornerstone for any later contest relating to a will or trust.

Erratic Behavior and Confusion

Sudden shifts in personality, stories that change from day to day, or an inability to recall basic personal details may suggest the testator could not track essential facts. Repeated, unexplained rewrites of a will within short periods also hint at confusion rather than thoughtful planning.

Communication Difficulties

You may notice the signer struggles to finish a sentence about who should inherit or cannot follow a simple conversation about assets. Conflicting statements, such as promising a house to one child while the will sends it elsewhere, can signal a deeper problem.

Influence or Coercion

Capacity and undue influence often overlap. If a frail parent signs a will while isolated from most relatives but in constant contact with a single beneficiary, capacity might be in doubt because pressure can overwhelm weakened mental abilities.

The warning signs above rarely stand alone. When you see several together, they warrant closer review.

Working with an Estate Planning Lawyer

When working with an estate planning lawyer in Georgia, the lawyer is going to seek to assess for themselves the client's legal capacity to sign a will or trust during his or her meetings with the client. Namely, the attorney will seek to determine that the client understands what he or she is doing, and that the client specifically: understands the assets (type and size) they have, understands their family structure (what the law describes as the natural objects of their bounty), and that the client has a clear and reasoned plan for how he or she wants their assets distributed following death and understands the consequences of such plan.

Georgia law sets forth requirements for testamentary capacity in O.C.G.A. 53-4-11, which provides that,

(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property.

(b) An incapacity to contract may coexist with the capacity to make a will.

(c) An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator, unbiased by the insanity or monomania with which the testator is affected.

(d) Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

As noted in the Georgia code, someone can have a lucid interval where they do have testamentary capacity to act, and someone who lacks capacity to contract for themselves can still have testamentary capacity, as the capacity to create a will is less than the capacity required to enter into a contract.

If you have any questions about estate planning in Georgia, we invite you to download our free guide here…no strings attached.

Questions About Testamentary Capacity? Contact Peach State Wills and Trusts© Today

Our team works every day to build estate plans that stand the test of time. If you want to structure your own plan to reduce future challenges, including challenges regarding capacity, we are ready to listen. Call us at 678-344-5342 or visit our Contact Us page to set up a conversation. Peace of mind often starts with a single call, and we look forward to helping you protect what matters.