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Testamentary Capacity

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Nobody wants to think about the end of their life. Unfortunately, nobody lives forever. There are ways to ensure one’s family is prepared if something unfortunate happens. It is important to understand the law around wills and the ability to make and execute a will.


A will is a document that gives instructions for managing a deceased person’s estate. A will can also be a method for a person to gets a say in what happens to them while living if they cannot speak or otherwise communicate it. In order to be able to write a will, a person has to possess the testamentary capacity to do so.

Testamentary Capacity

Testamentary capacity refers to the ability of a person to make a valid will. Most states have both an age requirement (usually 18 years old) and a mental capacity requirement for testamentary capacity.


Utah Code § 75-2-501 states that an individual who is 18 or older and of a sound mind may make a will.

Mental Capacity

Although adults are generally presumed to have the ability to make a will, there are instances in which an adult might not have the testamentary capacity to make a will, including when the person has dementia, Alzheimer’s, senility from old age, cognitive impairment from drugs or alcohol use, or a brain injury that leaves them incapacitated.

The state wants to ensure that an individual is of sound mind before making important end-of-life decisions. To meet the mental capacity requirements, the testator must have the ability to know (1) the nature/extent of property; (2) the natural objects of their property; (3) the disposition that their will is making; and (4) the ability to connect all of these elements to form a coherent plan.1Legal Information Institute, Testamentary Capacity, (last visited Aug. 29, 2022)

If someone contests that a person had the testamentary capacity to make a will, such as would typically occur in probate proceedings, the contesting party must have proof. Sometimes, attorneys even videotape the execution of a will to prove testamentary capacity. A note from a medical doctor is also a way to prove that a person has testamentary capacity.2Robin Jacoby & Peter Steer, How to Assess Capacity to Make a Will, 335 Nat’l Libr. Med. 155, 155–57 (2007)

Requirements for a Will

Under the common law, a will must be in writing, signed, and attested (witnessed) to be valid.3Legal Information Institute, Will, (last visited Aug. 29, 2022) In Utah, a will must be (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and (3) signed by at least two individuals, each of whom signed within a reasonable time after they witnessed either the signing of the will or the testator’s acknowledgment of that signature or acknowledgment of the will.4Utah Code § 75-2-502

There are a few instances where even if a will has not been executed, it can still be used for its purpose. Under Utah Code § 75-2-503, a document or writing can be treated as a will if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of the decedent’s formerly revoked will or a formerly revoked portion of the will.

Things to Include in a Will

  • Basic Personal Information: One’s address, name, date of birth, and even phone number, among others.
  • Declaration of Intention. A will should also include legal language that declares that one intends that the drafted document be construed as a will.
  • Appointment of Executor/Guardian. One should also include one’s appointed executor and appointed guardian for any pets or minor children. An appointed executor is someone the testator wants to take care of the testator’s finances and belongings. An appointed guardian is someone who the testator wants to care for the testator’s child(ren) and/or pet(s).
  • List of Properties. A testator can also include a list of their property and who they want it transferred to if something happens to them.
  • Funerary Instruction. A testator can also include any specific desires for their funeral; the testator needs to inform their friends and family as to what the testator wants. This is because sometimes a will is not read until after the funeral.

A will is different from a living will.


It is not uncommon for a person to be unconscious, in distress, or unable to speak at the end stages of life. A living will is a written statement detailing a person’s desires regarding their medical treatment in circumstances in which they can no longer express informed consent, especially an advance directive.5Mayo Clinic Staff, Living Wills and Advance Directives for Medical Decisions, (last updated Aug. 2, 2022)

Living wills give guidance to one’s doctors and healthcare executives and ensure that the person’s last wishes are followed. For example, a living will might address some of the following important questions:

  • Does the testator want to be on life support?
  • Does the testator want care withdrawn at a certain point?
  • If the testator is a woman, what do they want done if they are pregnant? Does the testator want to be kept alive to keep the baby alive?
  • Does the testator want to donate their organs?
  • Does the testator want to be kept comfortable?
  • Does the testator want extreme measures to be taken to save their life?
  • Does the testator have a Do Not Resuscitate (DNR) order?
  • Does the testator want to be cremated or buried?
  • Does the testator want a certain song played at their funeral?
  • Does the testator want a certain casket? Did the testator already pay for a certain casket?
  • Did the testator pay for a cremation?
  • Has the testator already made funeral arrangements? If so, what funeral home are the arrangements made at?
  • Who does the testator want to make these decisions for them? What is the contact information for those people?

These are all good questions to answer before something happens to an individual so that the individual’s loved ones know the proper actions to take.


Probate is the formal legal process that recognizes a will and appoints the executor or personal representative to administer the estate and distribute assets to the intended beneficiaries.6American Bar Association, Real Property, Trust and Estate Law Section, (last visited Aug. 29, 2022)

 Probate is the court-supervised process of administering one’s estate and transferring one’s property at death under the terms of one’s will.7See Id.

Probate usually focuses on a will’s existence, authenticity, and validity. When a testator dies, the executor initiates the probate process. The executor is usually a family member.8See Id.

Some people draft their own will or living will, but the document is not necessarily legal unless it has been executed. One way to ensure that one’s last wishes are followed is to have a professional draft and help one execute one’s will.

Let Altiorem Legal Services draft the will documents that you need!


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