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Testamentary Capacity

Under Anglo-American law, the right of testation refers to the freedom to choose how one's property and other possessions will be disposed of following one's death. For a will to be valid, the testator (the person making the will) must have testamentary capacity (TC) at the time that the will is executed. TC is thus a legal construct that represents the level of mental capacity necessary to execute a valid will. If TC is absent, then the will is void and fails. For reasons of public policy, courts have traditionally applied a low legal threshold for finding TC.

Conceptually, TC falls within the broader concept of financial capacity, but for reasons of history and tradition, TC continues to receive distinct attention within the legal system. Each ...

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