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What is the Mental Capacity Needed to Execute a Will?

The mental capacity to execute a Will is statutory in New York State and is delineated in the Estates, Powers, and Trusts Law (EPTL). Under EPTL section 3-1.1, “every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property.” The important part here is that a person must be “of sound mind and memory” at the time of execution of the Will.

New York State Courts have interpreted this statute to include the following requirements: 1. A testator must understand that he or she is signing a Will; 2. A testator must be aware of the nature and condition of the property being disposed of (estate assets); and 3. A testator must know who are the natural beneficiaries of his or her estate. This is a low bar to reach. Testamentary capacity is fact specific. It is a good idea to consult with an experienced estate planning attorney when making your estate plans.

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