Capacity Standards

Testamentary capacity refers to a person's ability to make a valid will, which is less stringent than the capacity required for entering into a contract. This means that even individuals who are under a conservatorship can still create a will, while more complex trusts require the higher standard of contractual capacity to be valid.

An elderly woman, who has been placed under a conservatorship due to dementia, decides to write a will leaving her estate to her grandchildren. Despite her mental condition, she understands that she is making a will and who her beneficiaries are. The will is deemed valid because her testamentary capacity meets the lower standard.

Wills need less brainpower than contracts!

Exams may present scenarios where a conservatee's capacity is questioned, leading students to mistakenly apply the stricter contractual capacity standard instead of the lower testamentary capacity standard.

Questions often involve fact patterns where an individual’s mental capacity is in doubt, requiring candidates to distinguish between testamentary and contractual capacity.