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What is Testamentary Capacity in Virginia


Testamentary capacity is simply the capacity to make a will. Virginia Code § 64.2-401 sets out who may make a will. The statute requires that the Testator (person making the will) be over 18 and of sound mind at the time the will is executed.


All adults are presumed to be of sound mind. Miller v. Rutledge, et al, 82 Va. 863 (1887). And “[n]either sickness nor impaired intellect is sufficient, standing alone, to render a will invalid.” Thomason v. Carlton, 221 Va. 845, 852 (1981).


The law considers a Testator to be of sound mind if:

  1. He recollects his property;

  2. He recollects the natural objects of his bounty and their claims upon him; and

  3. He knew he was making a will and how he wanted to dispose of his property.

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