What is Testamentary Capacity in Tennessee?

Posted by Martin Heller Potempa & Sheppard, PLLC on September 9, 2022

Understanding when the right time to write your will is and what you need to do so can seem overwhelming. You might think you did everything necessary to create your will, only for your loved ones to realize later that your will actually isn’t valid. In some cases, the creator, or testator, of the will may have lacked the testamentary capacity needed to allow them to create a valid will. Testamentary capacity refers to the mental capacity needed to execute a will.

When you or a loved one create a will for after you pass, you want to feel confident that it will be followed accordingly. Ensure that you know what’s needed to create a valid will.

Who Can Write a Will in Tennessee?

According to Tennessee Code § 32-1-102, to create a valid will in Tennessee, a person must be at least 18 years of age and be of sound mind. This means that the testator must be aware of what they’re doing when creating their will, which includes understanding that they’re creating a will, the property they own, and who they’re leaving their property to. 

Additionally, even if a person is of sound mind and over the age of 18, they still needed witnesses to create a will in Tennessee. The state of Tennessee requires that two witnesses be present at the signing of the will. Witnesses of a will must be competent to be a witness in general in Tennessee. Under Tennessee Code § 32-1-103, witnesses can have personal or financial interest in the will if it is also attested by two disinterested witnesses or if they “forfeit so much of the provisions therein made for the interested witness as in the aggregate exceeds in value, as of the date of the testator’s death, what the interested witness would have received had the testator died intestate.”

How Do You Show Lack of Testamentary Capacity?

If you believe that a loved one’s will was invalid due to them lacking testamentary capacity, you can contest the will. The person contesting the will must prove that the testator lacked testamentary capacity. Various evidence can be shown to prove that the testator lacked testamentary capacity, such as medical records and testimonies from doctors. However, the evidence must be shown that the testator lacked testamentary capacity at the time they created the will, which can be difficult if a significant amount of time has passed. Showing that the testator lacked testamentary capacity in the time since the will was created may not make their will invalid. Because of this, you need a skilled will contest attorney to help protect their true wishes. 

Ensure Your Will is Valid with Martin Heller Potempa & Sheppard, PLLC

If you want to do everything you can to prevent your will from being contested after you’re gone or believe your loved one’s estate plans were invalid, you need Martin Heller Potempa & Sheppard, PLLC. We know how to best help you plan for the future and assist you if you believe there are issues with a loved one’s will.

Contact Martin Heller Potempa & Sheppard, PLLC for help today.

arrow-up