CAPACITY IS IMPORTANT FOR ESTATE PLANNING

One issue of importance to anyone with property and who is drafting estate planning documents, such as setting up a trust or a will, is the question of capacity. In Ohio, legal capacity means the ability to fully understand what is entailed by those tasks. Many difficult situations can arise when an individual draws up a will or trust at a time when there may be questions of their capacity.

By creating these documents when there is no question of your capacity ensures that challenges to the will cannot be based on that question. It also means you intentions are more likely to be carried out and can save valuable resources of the estate and minimize frustration and stress on your heirs. Will challenges or any litigation that raises the issue of the testator's capacity can be very stressful for your heirs and lead to rancor and bitterness.

It is impossible to prevent all potential litigation for issues such as estate administration, as some potential heir that believes he or she should have received something can always file a lawsuit. However, if the drafting of all of your estate planning documents was competently executed and you clearly had your full facilities, such litigation is likely to be quickly dismissed for lack of support.

When medical conditions or substance abuse compromise the ability of an individual to understand the nature of a will or trust, their understand of their business, and to recognize and appreciate their relationship to their family, challenges to their testamentary capacity more likely, especially if someone or some branch of the family is cut out of the will.

Creating the necessary documents for an estate plan when you have full capacity has another advantage. You can inform your family of your decisions in advance, which can help to set expectations and prevent unnecessary and unproductive litigation.