Testamentary capacity can be a costly issue for people who delay creating an estate plan. We typically think of estate planning – creating wills, trusts – as a task to be completed later in life. This mindset can lead to a situation in which a person lacks the capacity to create an estate plan. Once a person no longer has the capacity to create an estate plan, planning becomes difficult, expensive, and in some situations impossible.
In Oklahoma, individuals must possess testamentary capacity in order to successfully create a will or trust. To have testamentary capacity one must:
- Know the character and extent of his or her property;
- Understand his relationship to the selected beneficiary or beneficiaries;
- Know who his relatives are; and
- Understand the effect of the will or trust.
Without testamentary capacity, the will or trust will most likely fail. Meaning that the eventual estate will be left without a plan for distribution. This mistake can have far reaching results on the estate. For example, property may be distributed to someone the grantor never wished to receive property. Mistakes like this are easier to avoid when planning is done at a younger age.
Although a person may be able to prove capacity (it is typically the challenger’s burden to prove incapacity), delay in establishing an estate plan may increase the chances of a challenge to testamentary capacity. As the grantor ages and perhaps becomes dependent on children later in life, more questions develop about the grantor’s ability to competently create an estate plan.
Testamentary capacity can also affect those who have an estate plan in place. A grantor’s ability to modify or revoke a plan is dependent on testamentary capacity. Consequently, it is important to keep estate plans current and updated. An estate plan created ten years ago may be adequate, but it is likely that the grantor’s situation has changed. Annual reviews of an estate plan can ensure that the grantor’s wishes are accomplished.
Attorneys at Ball Morse Lowe are ready to help individuals and families plan for the future by reviewing, updating, and creating estate plans. We believe everyone should have a plan they understand, and is understood by the people they care about. Contact us today to assist you in your own estate planning needs.