The issue of consent and state of mind touches upon perhaps some of the most personal and human issues imaginable. This blog explored issues related to the capacity necessary for a person to create a will. Passing on the bounty of your work to your loved ones or charity may be a specifically delineated right noted by Thomas Jefferson, James Madison or any other well known political philosopher, but it can only be denied, for all intents and purposes, if that person is legally or medically incapacitated or unable to make key decisions.

This is an extraordinary legal power that is only exercised after an exhaustive review of the facts. To legally deny someone the right to consent to decisions that directly impact them as a patient or client in a legal setting goes to the core of our humanity and, in some circumstances, requires Solomonic wisdom. As noted in different blog posting, Consent is situationally specific. Consent to intimate encounters with your spouse is different than consent to transfer money to a charity, of which little is known. As to the right to create a will and transfer your personal property, real estate and money to family members, what does New York law consider sufficient mental capacity to create a will? There is much case law on this topic as it is a topic that has to be resolved each generation in light of varying societal norms and advances in both psychiatric and general medicine.

In New York and in the law in general, the proponent of an argument has the burden of proof and persuasion to prove their argument. As such, the party who proposes to invalidate a specific will on the grounds that the testator lacked specific testamentary capacity must prove their case. As part of that decision, the Probate Court will consider

  1. Whether the testator understood the nature and consequences of executing a will; and
  2. Whether the testator knew the nature and extent of the property they passed via their will; and
  3. whether the testator knew the person to whom they were passing their property;
  4. the relationship between the testator and the person who received the property.

The testator’s capacity, or lack of capacity, is measured at the time that the will is executed. Even if the testator had many months of dementia, if he/she had a moment of clarity at the time the will was executed (assuming that one could prove that), that is enough for the Court to find testamentary capacity. What is missed on many people is that dementia (or any similar or related diagnosis) is a medical diagnosis, while the above test is a legal test. There is certainly substantial overlap and the existence of a medical diagnosis can inform the probate Court in its deliberation, but each determination is not coextensive with each other. The proponent of the argument that the testator lacked testamentary capacity must show more, or at least different proof that the testator had a medical diagnosis of dementia.

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