Signs of Lacking Testamentary Capacity & Legal Safeguards
Drafting a will sounds simple, yet capacity challenges can upend even the best‐laid plans. Families often learn after a loved one’s passing that someone is questioning whether the signer understood the document.
At Commonwealth Life and Legacy Counsel, we focus on estate planning, elder law, wills, and trusts for Central Virginians every day, so we regularly address these delicate questions. This article walks through the signals that a person might not have had testamentary capacity under Virginia law and the steps you can take to protect a will from attack.
Identifying Potential Signs of Diminished Testamentary Capacity
Virginia courts presume a testator is of sound mind, but that presumption can be overcome with credible proof. Below are several warning signs that may indicate the signer did not meet the standard outlined in the long-standing Banks v. Goodfellow test adopted in the Commonwealth.
Cognitive Impairments and Medical Diagnoses
A formal diagnosis, such as Alzheimer’s disease or vascular dementia, often triggers close scrutiny. Medical records showing memory loss, disorientation, or poor executive function near the signing date can become pivotal evidence.
When a person has been placed under a guardianship or conservatorship, a court has already determined impaired decision-making. Unless the same court later restores rights or approves the will, capacity remains in doubt.
Erratic Behavior and Confusion
Witnesses who see the signer struggle with the date, the nature of the document, or the identities of close relatives may later testify about those lapses. Confusion about the size of one’s estate, even when assets are modest, can weigh heavily against capacity.
Disorientation during the signing ceremony, such as asking why the gathering is happening or appearing unaware of familiar surroundings, provides challengers with compelling anecdotes.
Inconsistencies and Unexplained Changes
Sharp departures from long-stated wishes, especially late in life, raise suspicion. An example might be disinheriting adult children without any prior hint of discord.
Statements that conflict with earlier instructions, “I never owned real property,” despite years of home ownership, show the signer may not comprehend key facts.
If the will omits expected beneficiaries or misstates assets without any logical explanation, observers may question whether the testator grasped the document’s effects.
Susceptibility to Undue Influence
Weak health, isolation, or heavy reliance on a caregiver can leave a person open to pressure. When a caretaker suddenly gains the bulk of an estate, courts examine whether genuine consent existed.
Red flags include beneficiary changes shortly after hospital stays or when the only witnesses are friends of the new favored heir. Such scenarios suggest coercion rather than clear intention.
Legal Safeguards and Best Practices for Will Drafting
Fortunately, several measures can help bolster a will against future contests and give loved ones greater peace of mind.
Capacity Assessment
If there is any doubt about capacity, attorneys may recommend a doctor’s letter or neuropsychological evaluation dated close to the signing. A note confirming that the signer understands what a will is, the property they own, and who their closest heirs are can be very persuasive if the will is later challenged.
Thorough Client Meetings
Estate planning attorneys often meet with clients more than once before the signing. During these meetings, they may ask open-ended questions to confirm that the client fully understands their decisions and the reasons behind them. Attorneys may also review the language of the will aloud and ask the client to explain the meaning in their own words. This process helps ensure that the document reflects the client’s true wishes.
Detailed Documentation
Maintain a file that includes:
- Contemporaneous notes of each conversation
- Emails or letters in which the testator gives instructions
- Copies of any medical opinions on cognitive health
- Witness statements verifying the signer appeared alert and aware
A strong paper trail deters litigation and assists the court if conflict emerges.
Adherence to Virginia Law
Virginia Code § 64.2-403 requires a written will, the testator’s signature (or signature by another at the testator’s direction and presence), and two competent witnesses who sign in the testator’s presence. Oversights on any of these points can sink an otherwise valid document.
Self-proving affidavits, signed by the witnesses before a notary, spare heirs from tracking down witnesses years later and bolster authenticity.
Quick Reference Table: Safeguards for Stronger Wills
| Safeguard | Why It Helps | Ideal Timing |
| Medical Capacity Letter | Adds professional opinion of sound mind, countering later claims | Within 30 days of signing |
| Multiple In-Person Meetings | Shows consistent wishes and understanding over time | Throughout drafting phase |
| Self-Proving Affidavit | Eliminates need to locate witnesses during probate | At the signing ceremony |
| Video Recording | Captures demeanor, clarity, and absence of pressure | During execution, with consent |
Choosing more than one safeguard is often wise because each layer supports the next, much like overlapping planks reinforce a bridge.
Contesting a Will Based on Lack of Testamentary Capacity
If you believe a loved one signed without adequate capacity, Virginia law allows you to file a complaint in circuit court within one year of the will being admitted to probate. The challenger carries the burden of proof.
Common forms of evidence include:
- Medical records or doctor testimony documenting cognitive decline.
- Witness statements describing confusion or coercion during signing.
- Prior wills or letters showing consistent contrary intentions.
- Financial documents that expose errors in the final will.
The court balances this material against the presumption of validity and the safeguards put in place by the will drafting attorney. Successful challenges often hinge on showing a direct link between the cognitive issue and the flawed provisions.
Questions About Testamentary Capacity? Contact Commonwealth Life and Legacy Counsel
Our husband-and-wife legal team has helped Central Virginia families write, defend, and, when needed, dispute wills for many years. If you have concerns about a recent document or want to draft a will that can stand firm, call us at 434-589-2958 for the Troy office or 804-598-1348 in Powhatan. You can also reach us through our Contact Us page or email info@winget-hernandez.com. We look forward to helping you protect your legacy with care and clarity.