Determining Testamentary Capacity

November 21, 2022

In Maryland, the statutes lay out certain requirements that must be met to create and execute an estate plan. For someone to execute a will, he or she must be 18 years of age, of sound mind and sign the will in the presence of two witnesses and a notary. He or she must be free from duress and undue influence.

It is the responsibility of the estate planning attorney to ensure all of these requirements are met during the signing meeting.

Majority Age

This requirement is easy to verify by reviewing a valid photo identification.

Testamentary Capacity

To be of sound mind and have the mental capacity to execute a will in Maryland, the testator must prove to the attorney that he or she has the ability to know: (1) the nature and extent of his or her property ownership; (2) the disposition being made by the instrument; and (3) evidence that the connection is made between the property and its distribution through a coherent plan. Experienced attorneys know to focus on the decision-making capabilities during the interview, drafting and revising stages of estate planning. Most attorneys know to overlook personality quirks, oddities and such.

For questionable testators, it is often recommended that a letter of competency be obtained from either an attending physician familiar with the patient or a specialist who conducts cognitive testing. This letter of competency should be stored alongside the will.

Undue Influence

Undue influence is excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will. This will involve a combination of factors including the vulnerability of the testator, the tactics of the influencer, the authority exerted and the potential of benefits to be received by the wrongdoer. There are many opinionated adult children that attend will signings with their aging parents who do not rise to the level of undue influence. It is a clear distinction that must be assessed by an experienced attorney.

Free of Duress

Duress rises to another level above undue influence in that it occurs when a wrongdoer uses threats, violence, or constraints to bring about the testator’s actions. This would not likely occur in front of the estate planning attorney but would need to be assessed from interviewing the testator and other family members.

For more information on the Maryland requirements to ensure the valid execution of a will, contact the experienced attorneys at Stouffer Legal in the Greater Baltimore area. You can schedule an appointment by calling us at (443) 470-3599 or emailing us at office@stoufferlegal.com.

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