What is the minimum criterion for an adult who wants to execute estate planning documents? The short answer is testamentary capacity, sometimes defined as the legal and mental ability to understand the gravity and purpose of one’s actions in connection with creating advance directives. The validity of legal documents often turns on the question of whether the principal or testator possessed the sufficient required ability to understand who he or she is, the extent of his or her resources, who the natural beneficiaries of his or her bounty are, and the purpose of his or her actions.
This has nothing to do with physical disability.
Proof of testamentary capacity (other than as a function of reaching the age of majority) is determined by mental fitness and agility. Evidence of lack of such capacity defeats even the best laid legal plans and may cause upheaval in the distribution of assets. This is why all adults need to plan for incapacity or death long before they need to do so, namely when they are mentally well. Once someone no longer possesses the requisite mental capacity, it is too late to execute legal documents.
As an estate planning attorney, I have lately given the concept of testamentary capacity more thought in connection with some of my more challenging cases. While praying recently one morning, I suddenly stopped in the middle of the first morning blessing which Jews pray every day:
“Blessed are You, Hashem, our G-d, King of the universe, who gave the heart understanding to distinguish between day and night.”
I have recited this blessing thousands of times and yet, it was as if it was the first time I had read and understood its true meaning. The understanding to distinguish between day and night is the ability to understand who you are, the meaning of your efforts, and the connections you have with other people. Without the ability to distinguish mentally between day and night, a person lacks testamentary capacity.
A further review of the word ‘Sechvi’ - alternatively translated as heart (in Hebrew) and rooster (in Aramaic) – supports this conclusion. The heart knows the truth of the nature of interpersonal relationships as well as the natural objects of a person’s bounty. The rooster’s natural, superior intelligence establishes it as one of the smartest animals. Therefore, the heart’s outstanding ability to understand emotions and the rooster’s exceptional brainpower combine in this homonym to unite mental knowledge of oneself and one’s relationships with others in addition to clear, rational faculties. When the heart and the mind are in agreement, all is (mentally) well.
So, why does the blessing praise G-d who “gave” us this understanding – rather than “gives” us this understanding? This, too, is clear. When a person no longer possesses the requisite mental capacity, it is too late – to execute documents, to make decisions, to arrange legal affairs. Therefore, we are appreciative for the abilities G-d has given us so that we have been able to function well mentally and prepare for whatever today (the present) brings.
The ability to be mentally lucid, to understand your responsibilities and obligations, may also be found in the Bible. In last week’s Bible (Torah) portion, Shmini, the priests are exhorted to refrain from drinking wine or strong drink so that they “may put difference between the holy and the common, and between the unclean and the clean…” (Leviticus, Chapter X, verses 8-11, Hertz Soncino Translation, page 446). Distinguishing between holy and common, clean and unclean, and coherent and unintelligible all stem from the same mental function, namely the ability to understand right and wrong.
May G-d bless us all with the ability to understand and distinguish between day and night for many years to come.