Call Menu

What If The Will Maker (Testator) Becomes Incompetent, Does That Invalidate The Will?

The Will Maker (Testator) Becomes Incompetent, Does That Invalidate The Will?When a will is executed in New York State, one of the requirements of a validly executed will is that the person who is signing the Will (testator) possesses testamentary capacity. But what if the person who created the Will becomes incompetent? Does that invalidate the Will? When is a Will not valid?

It is important to note that caselaw sets the bar at what constitutes testamentary capacity at a very low point. The testator just needs to have a “period of lucidity” at some point during the day to be deemed capable of executing the will. However, if one suffers from some form of limitation on mental capacity such as Alzheimer’s disease or dementia, the issue of testamentary capacity could serve as a basis for objection when a Will is offered for probate in the Surrogate’s Court.

To respond to the question posed here, as long as the testamentary capacity of the testator is present at the time of the will signing, in addition to the other requirements of due and proper execution (i.e. no undue influence, fraud, two (2) disinterested witnesses present), subsequent incapacitation based on failing mental faculties will not serve as a basis to negate an otherwise validly executed will.

If you need the services of an experienced New York estate attorney, please contact Michael W. Alpert, Esq. at (516) 280-7288 or e-mail: