In Virginia, like all the other states, you have a right to draft your will and distribute your assets as you wish. For instance, you can choose who inherits the house and who acts as your will’s executor.
However, we live in a very litigious society. Thus, for a will to be valid and enforceable, you must be in the right state of mind to create one. This is known as testamentary capacity. Without this, someone could easily challenge, and invalidate your will. But what exactly is this and how is it established?
Understanding testamentary capacity
Testamentary capacity refers to the testator’s legal and mental ability to create a will or a trust, or any legal document, for that matter. To possess testamentary capacity, you must satisfy several elements. Here are some of them:
- You must understand that you are making a will and the resulting implications – both legal and personal. In other words, you must understand that a will is legally binding and that it will be used for dissolving your estate and distributing your assets upon your demise.
- You must understand the nature and extent of your assets and liabilities.
- You must understand why you are distributing your assets in a particular manner.
- You must ascertain who your beneficiaries are and if there is anyone else you are obligated to consider while distributing your assets, such as individuals who are financially dependent on you.
Simply put, testamentary capacity guarantees that you possess the mental capacity and understanding to make an informed decision regarding the inheritance of your estate.
A will is one of the most significant legal documents you can ever create. For your will to stand the test of probate, however, it must be valid.