Determining Testamentary Capacity in Nevada

Whether a last will and testament is valid or not often hinges on the testator’s mental capacity.  A lack of the proper mental capacity at the time the will was executed provides grounds for a will contest.

How to determine testamentary capacity in Nevada
Capacity is a Key Element to Making a Will

In order for a will or other testamentary document to be valid, the creator of the will, known as the testator, must have a certain level of mental capacity. This is referred to as “testamentary capacity.”

Elements of Testamentary Capacity

Under Nevada statutes, to establish a will, one must be at least 18 years old and be of sound mind.

To have testamentary capacity, the testator must also meet certain requirements that have been established by Nevada case law. The requirements include:

  1. Understanding the nature of the acts that one is doing.
  2. Recollecting and understanding the nature of the assets which will be disposed of.
  3. Understanding the natural objects of one’s bounty, that is recognizing one’s relationship to the people that would naturally inherit under the intestacy laws. Although an exact knowledge of the intestacy statutes is certainly not required.

It is possible to have testamentary capacity even after one no longer has the capacity to enter into contracts or handle one’s own affairs.  Even though there exists a certain amount of cognitive decline, someone may still experience periods of lucidity which would allow the person to understand what their assets are, what the effects of the will or trust would be, and who the natural objects of their bounty are.

Additional Factors

This obviously is more troublesome after someone has been diagnosed with dementia or Alzheimer’s disease, for example.  But again, this would not automatically mean that the testator lacks testamentary capacity. It does mean that it may be prudent to take additional measures to ensure the necessary capacity of the testator at the time of signing the will or trust.  Perhaps an evaluation by a psychologist for testamentary capacity would be advisable.

It may also be true that someone that would otherwise have testamentary capacity may temporarily lose that capacity due to circumstances such as taking strong medications that affect one’s mental state.

Whatever the case may be, the determination of testamentary capacity is very fact specific.  Each case is different.

It is important to determine testamentary capacity at the time of executing the trust or will.  Usually this is not a problem.  However, in some situations, extra steps may be a good idea.

And after the testator has died, testamentary capacity may become an issue when determining whether a potential will contest exists.

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