Do you understand what testamentary capacity is?

On Behalf of | Mar 4, 2021 | Estate And Probate Law |

A Pennsylvania personal representative must take care of many responsibilities after a testator’s passing. One is to file their will with the local probate court. One of the next steps that a personal representative must take is to notify any potential heirs of the testator’s passing.

It’s not uncommon for interested parties to raise concerns over whether their deceased loved one’s will adequately reflects their final wishes — especially if they believe their loved one was mentally declining when the will was written. That can lead to challenges in probate and questions about the deceased’s testamentary capacity.

What is testamentary capacity?

Having the testamentary capacity, or soundness of mind, is one of many requirements that an individual must meet to draft a will lawfully. A would-be testator must demonstrate that they have a clear understanding of their assets and the implications of leaving them behind for their heirs.  

Must witnesses be present at a testator’s signing of a Pennsylvania will?

Pennsylvania is one of few states that doesn’t require witnesses to be present when a testator drafts their will. State law does require two witnesses to attest to the authenticity of the testator’s signature during the probate process, however, if there are challenges. (States that do require witnesses generally do so to ensure that someone confirms a testator’s testamentary capacity at the time of its execution.)

A probate judge may ask those who knew a testator before they passed away before agreeing to record their Pennsylvania will. The court will do this to ascertain the testator’s mental state when they executed their will, given how Pennsylvania law doesn’t require witnesses present at its signing. Judges do this to avoid the potential of someone contesting the validity of the will down the road. 

Proving or disproving testamentary capacity can be challenging depending on your loved one’s medical state leading up to their passing. A probate attorney can help you navigate this and other matters in your Du Bois case.