Kaplin Stewart

Capacity schmapacity! She sounded OK to me!

A call from a friend raised one of the more difficult issues of probate law. Her mother had just executed a power of attorney that removed our friend as her agent and appointed our friend’s unscrupulous sister in her place. While this would be troubling under normal circumstances, it was particularly appalling to our friend, because her mother has suffered from dementia for several years.

How, our friend asked, could anyone think her mother could understand what she was doing?

In order to execute a valid will or power of attorney or health care directive or any testamentary document, a person must have “capacity.” This is true in Pennsylvania and every other state. What is also true here and elsewhere is that it may not be easy to prove that someone had or did not have capacity.

Pennsylvania statute dictates that a person must be at least 18 years old and of sound mind in order to execute a will or other testamentary instrument. The term “sound mind” has been the subject of much debate over the years — rather, debate and litigation.

One thing everyone agrees on is that “sound mind” means “capacity” — about as helpful as defining “ribaldry” as “ribald talk or behavior.” It’s as if the court or Merriam-Webster were saying, “If you don’t know by now, I’m certainly not going to tell you.”

Fortunately, the Pennsylvania Supreme Court has considered the term and has come up with a general definition of “sound mind.” Sound mind “exists when the testator has intelligent knowledge of the natural objects of his or her bounty, the general composition of the estate, and what he or she wants done with it.” Great. Thanks. Will this be on the test?

We’ll continue this in our next post.

Source: Standard Pennsylvania Practice 2d § 148:51: Execution and Validity of Wills, Requirement That Testator Be of Sound Mind via WestlawNext