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  • Alan D. Feller, Esq.

Capacity and Wills in New York


The reasons for not completing an estate plan when you are young usually center on a lack of immediacy. Aging and experience present us with example after example of poor planning leading to unwanted results. The progression of age-related illnesses is another underexamined factor why estate plans are left undone. A loved one’s memory difficulties or slower than expected reaction times unfairly prejudices family members as to the fitness of that person’s ability to make a Will.

New York law defines testamentary capacity as the ability of a person to make a will by understanding the nature and extent of their property, knowing the natural objects of their bounty and the contents of her will. Knowing what you have, who you are giving these things to and the fact that a Will document has been created to accomplish this outcome are the necessary prerequisites for successful Will execution. As one New York State Surrogate’s Court commented, testamentary capacity is “the lowest acceptable level of cognitive ability required by law.”

On paper, the definition seems reasonable and ascertainable. In practice, an older individual may have “good” days and “bad” days. For severe incapacity, will-making is not reasonable. Foregoing the will-making process because of the fluidity of age-related illness is not sound planning. The law takes into account the demographic identity and traits of a large number of will-makers and the fact that cognition may be an issue. That is why the capacity threshold is low. Not having an updated Will or even a Will at all when you have reached advanced years means that the important people and things in your life will not be properly addressed upon your passing. Who gets negatively impacted? Caregiver children, longstanding companions and other close family members will be underrepresented in the disposition of your estate assets.

Litigation arises when capacity is at issue and the Will includes or excludes certain people. However, refusing to make the effort to prepare a Will based on potential risks ignores the vast number of successful estate plans that brings order to a family and the important people in the Will maker’s life. There is nothing more disheartening than watching a caregiving child or long-term companion jettisoned from the deceased’s home because proper planning was not undertaken.

Determining capacity in the will-making process is extremely sensitive. First, the older individual may be relying on a family member or friend to arrange appointments and transportation. How far does the reliance go? Is the pressure for an estate plan coming from an external source or the senior. Long term clients’ behavior offer more clues because of the fullness of the attorney-client relationship and the ability to notice contrast. Newer clients with fewer contextual clues offer more challenges to an estate planner, but conversation and observation can provide support for going forward with a Will. Aggrieved parties who feel adversely impacted by a Will have every right to challenge a Will’s admission to Probate. Letting fear prevent one’s planning leads to more poor outcomes than moving forward with care and probity. Let an eldercare or estate planning attorney exercise their professional judgment as to the capacity of a will-making individual.



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