How will an attorney determine if a client has legal capacity to make a Will?

This question pertains to my 88 year old mother who suffers from senile dementia.

Adults are presumed to have capacity to make a will. Litigation about testamentary capacity usually involves charges that the testator, because of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. The court will require those who challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.

When a person’s testamentary capacity might be called into question, a lawyer might arrange for a will execution to be video taped and/or have a doctor examine the client to determine is competent and write a report or sign an affidavit.

Testators must have sufficient mental capacity to be able to understand the nature of the testamentary act, understand and recollect the nature and situation of their property, or remember and understand their relations to living descendants, spouse, and parents, and others whose interests are affected by the will. Testamentary capacity involves the question of whether, at the time the will is made, the testator ‘has sufficient mental capacity to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.


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All content is for informational purposes only. It is also only intended to relate to Mississippi Estate Planning Law.  If other states are mentioned, they are mentioned as an example only. No legal advice is provided in this content. Laws change so you need to check for any updates by current laws in Mississippi.