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How is testamentary capacity defined?

One of the first steps that the executor of an estate must take when a testator dies is to round up their will to take and file it with the probate court in the county in which the decedent lived. It's often not until this happens that you, as an interested party, are made aware of the contents of your loved one's will. If you're unhappy with what it says, then you may be able to contest their will.

Wills can generally be contested if someone engages in fraud. This often happens in one of two different ways.

One of the reasons why some jurisdiction's laws require testators to have witnesses present when they sign their will is to make sure that someone can attest to their testamentary capacity. Those same individuals may be called upon to testify that an individual wasn't subjected to undue influence when the testator signed their will as well.

Many conditions must be met for an individual to be able to lawfully draft a will. Most states require the testator to be at least 18-years-old and of sound mind.

Most jurisdictions consider a person to have mental capacity enough to draft a will if they can show that they are aware of the property that they own including some details surrounding the natural aspects of their parcel or house.

A testator must be able to demonstrate that they are fully aware of the disposition of property to be allowed to lawfully draft a will.

Potential testators must be able to identify which properties they wish to deed over to their loved ones upon their passing and be fully aware of the implications of doing so if they wish to comply with most states' laws.

Individuals who expect to be heirs to a loved one's estate often go into shock when they find out that they were written out of someone's will. You shouldn't let this motivate you to go and file a frivolous lawsuit against the estate just because this happens though. You may want to consult with a probate litigation attorney instead. They can review the evidence in your Cherry Hill case and let you know if you indeed have a valid reason for contesting your loved one's will here in New Jersey.

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Law Offices of Nancy M. Rice
Representing clients in Ocean City and communities throughout New Jersey.


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Phone: 856-673-0048
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