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  • Adam Bartsch

What Really is “Testamentary Capacity”?

Of all documents signed during the estate planning process, Wills and codicils have unique requirements that must be honored before a Probate Court will consider the documents legitimate and enforceable. This points out a little known fact: there is no Federal Constitutional right to designate who receives your property after you die.

All 50 states have laws allowing their citizens to write a Will. But in every state, a Will must meet requirements established by the state, or else the Will is invalid and unenforceable. It’s more accurate to say that writing a Will is a privilege granted by each state to its citizens, not a right held by each of us as an American citizen. As the Supreme Court stated in a 1942 case (Irving Trust Co. v. Day), “Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.”


To read more, please click the PDF below...

2017 - 08, Testamentary Capacity
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