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 West Virginia, testamentary capacity is the legal and mental ability of an individual (the testator) to create a will that can make legally effective decisions about the disposition of their assets upon death. The presumption in West Virginia is that adults have the capacity to make a will, while 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 the necessary testamentary capacity. The traditional legal terms 'of sound mind and memory' or 'of sound mind and disposing memory' may be used in wills to assert the testator's mental state at the time of making the will. The requirements for testamentary capacity in West Virginia are found in the state's statutes, particularly within the estates or probate code, and are further clarified through court interpretations in cases such as will contests. It is essential for a will to be admitted to probate that the testator had testamentary capacity at the time the will was executed.