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Capacity to Make a Will in Tennessee

Focused, personal representation for Tennessee families and businesses, with offices in Nashville and Memphis.

Last Updated: Oct 20, 2011

Read Time: 3 mins

As an estate planning and probate lawyer, I’ve handled cases from time to time where a person’s capacity at the time he or she created a Will or Trust was an issue. The elderly have increasingly become targets for those looking to prey on their physical and/or mental weaknesses. Additionally, people are living longer, and Alzheimer’s and dementia are becoming more and more common. Given all these factors, it is likely to continue to be an issue, especially when a person of advanced age changes or attempts to change beneficiaries.

What is a Self-Proving Will?

In most cases, a Will prepared by a lawyer includes the statements of 2 witnesses and a notary so that the Will is what is referred to as “self-proving.” If the Will is not self-proving, it must be “proven” after the person dies. In any case where there are handwritten notations or the document is totally handwritten, capacity of the person making the Will must be established.

Standard for Testamentary Capacity to Execute a Will in Tennessee

The general standard in Tennessee for capacity to execute a Will or a Trust is that the Testator (i.e., the person leaving the Will) be “of sound mind and disposing memory.” A person who does not have the capacity to conduct general business transactions or to enter into a contract can still have the required testamentary capacity to execute a Will or Trust. Two key factors in determining whether this standard is met are that the person must understand (1) the nature and effect of the act, and (2) the extent of the property the person is seeking to dispose of.

Whether a person is “of sound mind and disposing memory” is easy to determine when he or she is at one end of the spectrum or the other. Unfortunately, capacity is often not an all-or-nothing deal but falls somewhere in between the two. When a person whose capacity is questionable tries to make notes or create or modify a Will or Trust, it can be very hard to determine after the fact. Obviously, the opinion of the person’s physician is always preferable and can often help prevent questions later.

Without capacity to make or modify a Will, the person’s intent may not be able to be carried out, even if there is no question as to what he or she wanted or was attempting to accomplish.

Your Legacy is Too Important to Leave to Chance.

Proper execution of testamentary documents (i.e., Will, Trust, etc.) can avoid confusion later after you die, which is why it is important to consult an attorney when planning for your beneficiaries. The goal of testamentary documents is to accomplish your goals and objectives. What a shame if your intentions are not fulfilled due to a legal technicality or because a document was not executed properly.

If you would like to learn more about planning for your estate, please call us at 901-372-5003 or visit the Estate Planning page on our website.

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Client Reviews

    
 
 
      Posted on Google  
   
   Nancy Wallace 
 14 days ago
 
 
 Trustindex verifies that the original source of the review is Google. If you are looking to do estate planning, go with Patterson Bray! They are excellent to deal with!
  
 
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   Cheryl Adkins 
 15 days ago
 
 
 Trustindex verifies that the original source of the review is Google. We loved the staff at Patterson Bray.  Everyone was very professional.  Judith was very thorough and explained everything extremely well.  We would recommend Patterson Bray to anyone.
  
 
     Posted on Google  
   
   Hailey Wade 
 39 days ago
 
 
 Trustindex verifies that the original source of the review is Google. Patterson Bray PLLC did an excellent job with my grandmother's estate planning, and made everything easy to understand! She recommended them to a friend who went and is also very satisfied with their services.
  
 
     Posted on Google  
   
   Deb Clark 
 44 days ago
 
 
 Trustindex verifies that the original source of the review is Google. My experience with this firm, particularly Judith Denham has been truly exceptional.  From the consultation to the finish, the attention to detail, listening and responding to my needs.  My documents were completed timely and professionally.  I highly recommend Patterson Bray.
  
 
     Posted on Google  
   
   Tanya White 
 44 days ago
 
 
 Trustindex verifies that the original source of the review is Google. PattersonBray Estate Planning was an incredible firm to work with setting up our Trust. Judith Denham was thorough, very smart, and personable as she patiently explained each part.  Gabby put together  a very professional beautiful binder for us to have, and has answered questions we have had since  then. I am so glad they were recommended to us, and we had them to walk us through this procedure.
  
 
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   Charmaine Sego 
 44 days ago
 
 
 Trustindex verifies that the original source of the review is Google. Patterson Bray did a great job with my mother's trust.
  
 
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   Phil Chamberlain 
 61 days ago
 
 
 Trustindex verifies that the original source of the review is Google. Patterson Bray PLLC - first class lawyers.
  
 
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   Catherine McGee 
 81 days ago
 
 
 Trustindex verifies that the original source of the review is Google. Heath Taylor was a genuine joy to work with during my divorce: straight forward, professional, and knowledgeable. I do hope I never have the need to acquire more legal help, but if I do, he'll be my first call. Thank you for everything, Heath!!
  
 
     Posted on Google  
   
   Marva Johnson 
 87 days ago
 
 
 Trustindex verifies that the original source of the review is Google. I FOUND PATTERSON BRAY AND JUDITH DENHAM TO BE PROFESSIONAL, VERY THOROUGH, AND PERSONAL. I DID NOT FEEL LIKE A CLIENT, BUT A PERSON. I AM SO IMPRESSED WITH THEM, ESPECIALLY JUDITH AND GABBY. VERY GRATEFUL FOR ASSISTANCE.
M.JOHNSON
  
 
     Posted on Google  
   
   Pam Nicole 
 88 days ago
 
 
 Trustindex verifies that the original source of the review is Google. We set up a trust with Judith, at Patterson Bray and we received excellent service. Everything was explained thoroughly and everyone was very friendly and professional. I would definitely use her and the firm again, if needed.

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Capacity to Make a Will in Tennessee

What is a Self-Proving Will?

Standard for Testamentary Capacity to Execute a Will in Tennessee

Your Legacy is Too Important to Leave to Chance.

Patterson Bray

Blog & News

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Federal Rest Rules for Commercial Drivers

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