Clients often ask me "can a person with mild dementia create a will?" To create a will including a notarized will, testamentary capacity is required. Generally, the capacity is defined as a level of cognitive ability equivalent to that of a 15-year-old.
Notaries are allowed to determine if there are any problems as to testators’ testamentary capacities through verbal communication. A notary public may refuse to notarize a will if there is a doubt as to a testator's capacity. However, it is important to note that even if a notary has notarized a will, it does not mean that the notary has guaranteed the testator's capacity. Often, the only opportunity for a notary to communicate directly with a testator is a single meeting at the notary office. Under such circumstances, it is difficult for a notary to accurately assess a testator's capacity. More importantly, notaries are not doctors, and not responsible for guaranteeing the capacities.
As a result, even if a notarized will has been created, there remains a possibility that a legal dispute may arise regarding the validity of the will during or after the testator’s life, arguing that the testator must not have had testamentary capacity when he/she made the will.
To avoid such a situation, particularly in cases of elderly individuals or those suspected to have dementia, it is strongly recommended to leave evidence to prove that a testator had testamentary capacity at the time of will creation.
How, then, can one evidence the existence of testamentary capacity? It will be explained in the following column.