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 South Carolina, testamentary capacity is the legal and mental ability of a person to create a valid will. The individual making the will, known as the testator, must be capable of understanding the nature of the act, the extent of their property, the natural objects of their bounty (i.e., the likely heirs), and the disposition that they are making of their assets upon death. South Carolina 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 serving in the military. Individuals with mental impairments, such as dementia or Alzheimer's disease, may lack the requisite capacity to execute a will. The historical standard for testamentary capacity in South Carolina involves the testator being 'of sound mind and memory.' The specific requirements for testamentary capacity are found in the South Carolina Probate Code, and the courts interpret and apply these laws in cases involving will contests, where the capacity of the testator at the time of making the will may be challenged.