Testamentary capacity is the legal and mental ability of a person making a will (the testator) to make a legally binding disposition of their assets and to understand the nature and effect of the act of making a will—including disposing of their assets at death.

Proof of testamentary capacity is a required element of a will being admitted to probate and recognized by the court as having legal effect.

Adults are generally presumed to have the legal capacity to make a will, but minors (persons under a certain age) are not—with some exceptions in some states, such as if the minor has served in the military or has been married.

Persons who suffer from dementia, Alzheimer’s disease, or insanity, for example, may lack testamentary capacity to make a will.

In legal jargon, the historical terms of art for testamentary capacity were that the testator was “of sound mind and memory” or “of sound mind and disposing memory,” and this terminology is sometimes recited in a will as a statement of the testator regarding the testator’s mental capacity when making the will.

Laws vary from state to state and the requirements related to testamentary capacity are often located in a state’s statutes—usually in the estates code or probate code—and interpreted and applied by the courts in specific factual circumstances or cases that are reported in court opinions involving will contests, for example.

In Colorado, testamentary capacity is the legal and mental ability of an individual (the testator) to create a valid will. This includes the ability to understand the nature of the act, the extent of their property, and the disposition of their assets upon death. Colorado law presumes that adults have the capacity to make a will, but minors typically do not, unless they meet certain exceptions such as being married or having served in the military. Individuals with mental impairments, such as dementia or Alzheimer's disease, may be deemed to lack testamentary capacity. The standard for testamentary capacity in Colorado is that the testator must be 'of sound mind,' which means they understand the consequences of making a will and the nature of their bequests. This is codified in the Colorado Revised Statutes under Title 15, which governs probate, trusts, and fiduciaries. If a will's validity is contested on the grounds of testamentary capacity, the courts will evaluate the evidence based on the specific circumstances of the case.