Capacity to Make a Will

In order to make a will, you have to be legally capable of doing so. This involves the familiar "sound mind and body" requirement. It also means that you have to reach the legal age of majority (18) before you can make your will.

Meeting the sound mind and body requirement is simpler than you may think. Fortunately for most of us, the law does not expect the will maker to be intelligent or in peak physical condition. Instead, the law merely requires that the will maker be physically and mentally capable of understanding the nature and importance of the document they are preparing and signing.

Keeping the above criteria in mind, the following conditions can affect the validity of your will:

• being high on anything other than life
• having a physical handicap or ailment that affects your reasoning abilities or otherwise affects your ability to think
• openly talking to your evil twin when you were born an only child
• being declared mentally incompetent by a court
• being physically paralyzed and unable to communicate your instructions

The sound mind and body requirement only has to be satisfied at the time you make out and sign your will. So once you make a valid will, for example, the will won't become invalid just because you later turn into a senile drug addict.

Work Smart Video or film recordings are sometimes used in conjunction with a written will to help establish the mental capacity of the testator and to show that there is no undue influence associated with the process. This is fine as long as there is a valid written will and the person being recorded is on their best behavior. Video-taping yourself as part of the will making process is the infamous double-edged sword, however. If the opportunity ever presents itself, anything you say to the camera can and will be used against you in a (probate) court of law. If you do choose to videotape yourself, dress, speak, and act as conservatively as possible. Do not take this as your opportunity to rant and rave or your last chance to get in some final jabs at someone. Your loved ones may be used to such outbursts, but the objective observer (like a judge) is less forgiving and may view you as simply a mentally incompetent lunatic.

The minimum age requirement is even more straightforward. The law generally sets the arbitrary age of 18 as the age of legal majority. This magic age entitles a person to make adult decisions, including having a will made for themselves. Not too many people rush out to make a will as soon as they turn 18, though.

Lest you think otherwise, there is some method to the madness of these requirements. As imperfect as they may seem at times, these rules, as well as other will making legal requirements, are really intended to protect your interests in the whole process. After you are dead, your will has to survive and be able to stand on its own without you.

Jumping through some minor legal hurdles is a small price to pay for the security of knowing that your wishes will be carried out. As the example below illustrates, the alternatives aren't very pretty either.

Warning While visiting a relative in the hospital, the following macabre will making scenario was observed. An elderly woman, unconscious and with various tubes running in and out of her body, was visited by her son and daughter-in-law. While the woman was still unconscious, the relatives held a pen in her hand and made her sign something, which turned out to be her will. The relatives then called a nurse and had her sign the will as a witness, explaining that the woman woke up long enough to execute her will. This is so wrong on so many levels. Looking past its sheer gruesomeness, this situation clearly violates the requirement that a will be made by a person of sound mind and body. Given the circumstances, even a minimal challenge of the will in court would easily result in the "will" being declared invalid. Unfortunately and very sadly, this situation is not an isolated incident. To avoid this situation from happening to you, have a valid will made while you still can.