Sound Mind In Making A Will

Posted by: Mar 11, 2020By Brian Stutheit

Only someone of “sound mind” may make a will. “Sound mind” is when someone who possesses the necessary mental capacity to execute a will and is free of undue influence, fraud, and coercion.

The mental capacity to make a will is:
(1) knowing and understanding the nature of the act he or
she is doing;
(2) knowing the extent of one’s property;
(3) knowing the natural objects of one’s bounty [heirs];
(4) knowing the nature and effect of the proposed

Paraphrasing an old Colorado case:

“While the law does not undertake to measure a person’s intellect, and define the exact quantity of mind and memory which a testator shall possess to authorize him to make a valid will, yet it does require him to possess mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment toward him, their capacity and needs, and that he shall have sufficient active memory to retain all of these facts in his mind long enough to have his will prepared and executed; if he has sufficient mind and memory to do this, the law holds that he has testamentary capacity.”’

Mental capacity is measured as of the day the will is signed, but courts may consider evidence of incompetency at times prior to the date of execution. But in order to prove that a testator is not possessed of sufficient mental capacity to execute a valid will, evidence offered has to be calculated to establish his mental incapacity at the time of the will’s execution. Expert opinion evidence describing the mental incapacity at a time prior to the execution of the will, if not too remote in time, provides an inference, the weight of which is left to the trier of fact, that the testator continued to be incompetent at the date of the will’s execution. The admissibility of such evidence is largely within the discretion of the trial court.

By statute in Colorado, contestants of a will have the burden of proving lack of mental capacity, undue influence, fraud, duress, or that the will was later revoked.