Testamentary Capacity & COVID-19

When the recent health crisis took over the nation, many Americans used this time to create wills and trusts to provide for their loved ones should the unthinkable happen. But now, with thousands across our country having lost the battle to COVID-19, some families may wonder, was the will that was drafted even valid? If you have a question about the testamentary capacity of a loved one at the time their will was created, the probate litigation attorneys of MHPS have guidelines for you.

What is testamentary capacity?

Testamentary capacity is the ability of a person to make a valid will. In Tennessee, to meet testamentary capacity, the testator must be at minimum 18 years old and reach a mental capacity requirement. The Legal Information Institute (LII) of Cornell Law School states: “To have mental capacity, the testator must have the ability to know:

  • The nature/extent of property;
  • The natural objects of her property;
  • The disposition that her will is making; and
  • The ability to connect all of these elements together to form a coherent plan.”

However, while this seems like a straightforward test, the reality is that COVID-19 has made it difficult to determine if someone truly had the mental capacity to draft the will during these uneasy times.

Many courts in the United Kingdom have been following the idea of the “Golden Rule” which provides loose guidelines for those preparing wills who are elderly or who have suffered a serious illness that in the drafting process, the will should be witnessed by and approved by a medical practitioner.

However, in the United States, judges are met with difficulty and resistance due to social distancing guidelines, families being unable to be with loved ones, and the sometimes quick decline that a COVID-19 diagnosis brings to a patient.

COVID-19 Testamentary Capacity

If you have a loved one in a nursing home or skilled facility who has recently been diagnosed with COVID-19 and you now fear that the will they promptly created will not be considered valid, contact the legal professionals of MHPS before it is too late.

Nashville Wills Contest Lawyers

If you are questioning the validity of a loved one’s will as a result of their COVID-19 diagnosis and death, it’s best to get legal advice on your next steps. For decades, Tennessee wills contest lawyers at MHPS has been helping clients throughout Nashville, Springfield, and throughout Middle Tennessee with estate planning. We are prepared to help you through this difficult time. Contact us today for more information.

Previous Post
Conditional Gifts in Estate Planning
Next Post
Establishing a Special Needs Trust in Tennessee: Duties of the Trustee