Ask any baby boomer you meet on the street if he or she is having little memory glitches, and you are likely to get more than a simple “yes.” If your experience is anything like ours, the answer will be, “Yes, and it drives me nuts!”
It is frustrating to forget someone’s name mid-sentence, or to lose track of your glasses or your checkbook (remember checkbooks? like credit cards, but bigger), or to blank out on whether the Eagles or the Patriots play for Philadelphia.
The last could get you into deep trouble if it happens in the wrong bar. But the occasional memory lapse or search for a common word should not be alarming, according to a friend’s internist. A memory care specialist told another friend that if you can count backward from 100 by sevens and spell the word “world” backwards, you are not suffering from dementia.
Maybe not dementia, but do you have capacity?
Are you of sound enough mind to have “intelligent knowledge of the natural objects of [your] bounty?” We ask because that is the definition the Pennsylvania courts will use if anyone challenges your capacity at the time you signed your will or your power of attorney.
As we said in our last post, you need “testamentary capacity” to execute estate planning documents. You cannot be under duress, and you have to know what you’re doing at least as well as a “normal person” would under the same circumstances, according to Black’s Law Dictionary (10th ed. 2014 ).
Perhaps in an effort to speed things along, the law, under the banner of the Federal Rules of Civil Procedure, focuses not on capacity but on the lack of capacity. The law essentially trusts the people working with the testator (the same person who can’t remember your name but remembers the B-side of every Beatles single); the law takes their word for it that the testator had capacity and was of sound mind.
In a dispute, then, the burden falls on the person challenging the testator’s capacity. Under the rules, the challenger must prove that the testator did not have capacity, did not know the natural objects of his or her bounty.
So how do you challenge capacity? Is there a decoder ring or something?
We’ll get into that in our next post.
Standard Pennsylvania Practice 2d § 148:51: Execution and Validity of Wills, Requirement That Testator Be of Sound Mind via WestlawNext
Cornell University Law School/LII, Federal Rules of Civil Procedure 9(a)(2)