Transcript of the above video: 

As the title of this video suggests, we are discussing drafting Wills and legal capacity. What are we talking about here? Well when we are talking about legal capacity, we are talking about whether or not someone has the ability to have testamentary intent.

What are we talking about here? They basically have to be of sound mind; they have to know what they are doing at the time that they promulgate or sign any documentation pertaining to their estate. So basically, they have to know what they are doing, that's what it comes down to, and they have to be of sound mind; compos mentis. That's an important component we look for when we are drafting Wills. If it's readily apparent that somebody has no capacity, then obviously we are not going to draft a Will for that person. 

That said, this issue can get a little bit murky and I made another video contemporaneously with this one talking about Living Wills, Health Power of Attorney, however you want to look at that, but basically if you are competent and you are thinking about a Will, you probably should do it sooner rather than later especially if you are older because this is my point. It's not so much that people just immediately lose capacity, it's generally a gradual process, but you want to be certain that somebody has their capacity when they draft a Will to a certain a degree as you possibly can. So this is one of the reasons why it is kind of one of those if you are thinking about a Will - especially if you are an older person - and define older I don't know necessarily what that is. Look some people can lose their capacity in their 50s, some people can lose their capacity in their 60s. Some people can be sharp as a tack and become centagenarians - they can get to 100 years old and still have their capacity with them. Different people are different, but again if you are thinking about doing a Will and you are somewhat older and any of this analysis regarding capacity comes up, my best advice is to contact a legal professional, gain some insight guidance into how best to proceed sooner rather than later because you want to ensure that there is no question you had sound mind at the time that a Will was drafted per your instruction.