Lack of Testamentary Capacity – Illinois Will Contest

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A finding of a Lack of Testamentary Capacity at the time of the execution of a will can be the basis for a successful will contest.  In Illinois, there is a presumption that the testator possessed testamentary capacity at the time the will was executed, if the will is properly executed (signed) in the presence of at least 2 attesting witnesses.

The test for testamentary capacity:

  • The testator had the ability to know the nature and extent of his property (or “bounty”);
  • The testator had the ability to know the natural objects of his bounty;
  • The testator had the ability to make a disposition of his property in accordance with some sort of plan formed in his mind.

Thus, a person may not be competent to handle his or her business affairs, but still have testamentary capacity.  Advanced age or illness do not alone result in a lack of testamentary capacity.  Additionally, an individual may have been adjudicated a disabled adult, yet still possess the capacity to make a will.

For more information on Contesting a Will

For more information on the Lack of Testamentary Capacity