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Mental Capacity to Create a Will

To mount a successful challenge, a litigant must produce strong evidence on the mental status of the deceased.When questioning mental capacity, the Caveator must show that the maker of a Will did not understand the nature and extent of his property, the manner in which he wanted to distribute his estate, and the consequences of his Will.  While the evidentiary burden of proving this is heavy, the Caveator may produce evidence of irrational behavior or other evidence of impaired mental status to attack the competence of the deceased.


Perhaps the most common basis for challenging a will is the mental capacity of the testator at the time of the will creation. To be capable of making a valid will, a person executing the will must be able to:

  • understand that the maker is creating an instrument by which the maker’s property is being disposed;
  • understand, in a general way, the nature and extend of the maker’s property; and
  • recall, weigh and appreciate the relative claims of the persons who have or may have rights to the maker’s property, such as relatives, dependents and other people with whom the maker has a special relationship.

When a will is offered for probate, and subsequently challenged in a caveat proceeding on the basis of lack of testamentary capacity, there is a presumption of sanity, and the caveator has the burden of proving lack of testamentary capacity. Fortunately for many of us, eccentricity is not sufficient to overcome the presumption, nor is mental impairment, unless it affected the capacity to make a will. Indeed, even instances where the maker was previously declared incompetent to manage their own affairs in a guardianship proceeding, do not constitute a per se lack of testamentary capacity.

Extensive Maryland case law on the issue of testamentary capacity instructs that it must be determined by the maker’s external acts and appearances. At the moment the will is created, it must appear that the maker had a full understanding of the nature of the business in which he was engaged, recall the property she intended to dispose, and the persons to whom she meant to give it.

Maryland's Lucid Moments Rule in Proving Testamentary Capacity

Under Maryland’s "lucid moments rule," the burden of proof is shifted when those challenging the will establish that the maker lacked the necessary testamentary capacity to dispose of the property before the will was made. If this is established, the person who offered the will for probate must prove that the will was executed during a lucid interval during which the maker had the necessary mental capacity to dispose of the property.

Caveator's Burden of Proof: Producing Evidence of Mental Incapacity

A caveator must prove lack of testamentary capacity, at the time the will was executed, by a preponderance of evidence. The preponderance of evidence standard remains when the burden of proof is shifted, under the "lucid moments rule," to the person offering the will for probate.


With illnesses such as bipolar disease, or schizophrenia, people can have days of lucid behavior, followed by unforeseen breaks from reality. Maryland law contemplates these situations in the "insane delusions" doctrine. If at the time of execution of the will, the maker suffered from an insane delusion which affected the maker’s judgment concerning the contents of the will, the entire will is invalid, unless the part of the will caused by the insane delusion can be separated from the rest, leaving the will intelligible and complete in itself, in which event only such part of the will caused by the insane delusion is invalid.

A person suffers from an insane delusion if she persistently, and against all evidence and probability, believes in supposed facts which exist only in that person’s imagination and who acts as though these imagined facts are real. However, remember that there is a presumption of sanity, and one’s ability to have lucid intervals indicates that the maker is not permanently incapacitated.

The selection of witnesses to a will takes on added importance when preparing a will for a person who may suffer from insane delusions, or temporary breaks from reality. Health care providers, or uninterested persons familiar with the maker’s mental condition are ideal. A video record of the will execution is also recommended in these instances. Although the video may not substitute for the written will, it may provide crucial evidence of the maker’s mental capacity at the time the will was signed.

The legal information on contesting Maryland wills by proving the testator's lack of mental competence, testamentary capacity, insane delusions, the lucid moments rule, delusional behavior in signing wills, and the caveator's burden of proof in caveat litigation designed to attack the validity of wills, is designed for informational purposes only and is not intended to constitute legal advice. Readers are advised to seek the representation of competent probate litigation attorneys Maryland estate planning lawyers to protect their legal rights. The slogans, High-Speed Access to Legal Action, Legal Advice, Legal Counsel, Legal Protection, State & Federal Courts, Dispute & Conflict Resolution, Probate Protection, Legal News, Legal Training & Seminars, and the substantial equivalent thereof are service marks of Kramer & Connolly.