If She Possess Sufficient Capacity, An Incapacitated Person May Execute A Last Will And Testament

If a person declared to be incapacitated wishes to execute a Last Will and Testament, there a judgment must first be entered by a court declaring that the proposed testator has regained capacity to do so. See N.J.S.A. 3B:12-27; In re Estate of Frisch, 250 N.J. Super. 438 (Law Div. Probate Part 1991); In re Estate of Bechtold, 150 N.J. Super. 550 (Ch. Div. 1977).

It is widely recognized that “[a]s a general principle, the law requires only a very low degree of mental capacity for one executing a will.” Matter of Will of Liebl, 260 N.J. Super. 519, 524 (App. Div. 1992) (citing In re Rasnick, 77 N.J. Super. 380, 394 (Cty. Ct. 1962); Loveridge v. Brown, 98 N.J. Eq. 381, 387  (E. & A. 1925); 5 Alfred C. Clapp, New Jersey Practice — Wills and Administration § 36 at 153 (1982). The gauge of testamentary capacity is “whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will….” As the Liebl court recognized, “Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity… Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate.” Liebl, supra (citing Gellert v. Livingston, 5 N.J. 65, 73 (1950); 5 Alfred C. Clapp, supra, § 36 at 150-56).

The Supreme Court in In re M.R., 135 N.J. 155 (1994) encouraged courts to be mindful of the need “to provide for the wards’ needs while maximizing individual autonomy,” and recognize that “incapacity may be partial or complete,” Id. at 171 (citations omitted).

Indeed, following M.R., New Jersey enacted N.J.S.A. 3B:12-24.1, thereby codifying the concept of a “limited guardian”:

If the court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the court may appoint a limited guardian… A court, when establishing a limited guardianship shall make specific findings regarding the individual’s capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. 

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