When does someone in New York have the capacity to draft a will?

Published By | Apr 4, 2023 | Estate Planning |

The decision to draft an estate plan gives someone control over their legacy and also helps them to protect their interests in the event of a medical emergency that results in medical incapacitation.

However, not everyone in New York can create estate planning documents, including wills. The law limits that right to specific people.

Testators must be adults

New York state law specifically states that those creating estate planning documents need to be at least 18 years of age to have the legal authority necessary to create these legally-enforceable resources. In some cases, there may be exceptions for those who have pursued emancipation from their parents’ care while still under the age of 18.

Testators must have appropriate testamentary capacity

New York law also requires that those creating estate planning documents have the legal capacity to enter into a binding agreement. Specifically, the law requires that someone must be of sound mind and memory to draft a will.

These requirements might mean that some situations will prevent specific older adults from creating valid documents. Conditions that affect someone’s cognitive ability, like Alzheimer’s disease, as well as conditions that affect their memory, might eliminate their testamentary capacity and prevent them from creating documents that the courts will uphold.

Both the general effects of aging and also someone’s diagnosis of a serious medical condition could lead the courts to decide that they do not have the capacity to create documents. Such determinations could lead to guardianship while someone is alive and/or the invalidation of their estate planning documents after they die.

The sooner in life someone drafts estate planning documents, the easier it will be for them to adequately protect their interests down the road. The presence of witnesses when signing wills and similar paperwork can also help someone avoid claims that they lacked the capacity to create valid estate planning documents.

Learning more about New York’s probate laws by speaking with an experienced legal professional can help people understand when to begin estate planning and what choices they’ll need to make during that process.