WHAT IS TESTAMENTARY CAPACITY?

In order to sign legal documents, you need to understand what you’re signing.

In law, the levels of understanding vary depending on which type of document you’re signing.

For example, for a contract in Massachusetts you need to understand the nature of the transaction and the consequences of engaging in the transaction, at the time the transaction is made.

That may seem intuitive, but when you’re a lawyer litigating this stuff or analyzing capacity, the slight nuances in wording matter.

For a will signing, you need to be “of sound mind.” That’s different than the standard of capacity applied to contracts. It’s actually a slightly lower standard, meaning less stringent.

To sign a power of attorney, courts have posited that you need the same capacity as you do to sign a contract, and to sign a healthcare proxy you need a slightly lower level of understanding.

Additionally, even if you don’t have the capacity to sign a will you can have a moment of “lucidity.” This occurs with elderly people who may be confused one minute but lucid the next. In a lucid moment, they have the capacity to sign a will.

The point is that having a confused or disoriented person sign a legal document can pose difficulties in the future. It’s best when there’s no question as to the persons capacity when signing a legal document.

However, lawyers encounter a lot of clients who exist in a gray area where they may seem like they have capacity but also are a little shaky.