Written By: Brandy Miller | March 30, 2017 | No Comments

Trying to decide whether a person is unfit to create a will can be an extremely delicate, emotional and uncomfortable process. It can also be very tricky. In order to make this determination, the help of experts such as psychologists, psychiatrists and doctors will very likely be necessary.

Here is some information on some of the factors that go into determining a person’s mental capacity when it comes to making a will.

Testamentary Capacity

This term refers to someone’s ability or inability to both comprehend and execute either an estate plan or a will. In general, anyone over the age of 18 who has ordinary intelligence will be considered competent to create a will. The person must be able to understand what they are creating and properly determine the property to be distributed, and then be able to correctly understand and identify the people who will be named in the will.

These are, in most cases, easy criteria to meet. However, if a person is found to be mentally deficient, it may be determined that he or she does not have the testamentary capacity needed in order to make a will. It is extremely important to note, however, that just because someone is ill or living in a nursing home or skilled nursing facility, that does not mean he or she cannot create a will.

There is, however, a chance that the will could be challenged if the creator was in ill health at the time.


Unfortunately, sometimes, the person making out a will is suffering from paranoid delusions and creating the document based on beliefs that are not based in reality. An heir who has been disinherited may challenge the will and try to show the “testator,” or the creator of the will, was having delusions. If that can be proven, there is a high likelihood the will is going to be declared invalid. Someone with Alzheimer’s or dementia could also be declared unfit.

Disputed Changes to a Will

There are even some circumstances where a will is challenged based on a belief that a friend or family member unduly influenced a person to make changes, or even “brainwashed” the testator. The challenger is not necessarily saying the testator did not have the mental capacity to make the will, but instead was influenced by dubious means. For example, the challenger may claim the influencer threatened to withhold care or applied pressure in some other way in order to have the will changed.

The creation of a will can, as you see, be a very complex, emotional process. It can be difficult for someone to ensure that his or her final wishes will be carried out to the letter. That is why having an experienced estate attorney by your side is so important.

Please contact Miller Law Group, PLLC, to learn more about how we can help. Give us a call at 610-670-9000 or contact us online to schedule a confidential consultation.