To make a will so that the inheritance rights of loved ones are protected, a testator has to have testamentary capacity. To have "testamentary capacity" the testator must, at the time of the execution of the will, have sufficient mental ability
- to understand the business in which he is engaged;
- to understand the effect of his act in making the will;...
- to know the general nature and extent of his property;
- to recognize his next of kin and the natural objects of his bounty; and
- have sufficient memory to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment.
Testamentary capacity is never presumed due to the statutory requirement that “sound mind” be proved.
A self-proving will, with proper affidavits, will supply “some evidence”of testamentary capacity and if otherwise unobjected to, the will may be admitted to probate without further evidence on this issue. The affidavit may, of course, be rebutted by other evidence of lack of capacity
“Testamentary capacity” is different from the capacity to contract because a person is presumed to have sufficient capacity to enter into a contract but no such presumption exist for the capacity to make a will.