Forensic Psychology in Denver, Expert Witness, Colorado Forensic Psychologist


Testamentary Capacity: What It Takes To Competently Sign A Will


The two takeaways:

  1. You must be of “sound mind,”

  2. You are allowed to be a jerk, as long as you are of “sound mind.”

Every state is slightly different when it comes to what constitutes the capacity to sign a valid will, but they are all fairly similar. In Colorado, There are two different tests that can be applied, based on the landmark 2000 case of Breeden v. Stone (Breeden, 992 P.2d 1167 [Colo. 2000]): The Cunningham Test and the Insane Delusion Test. And in fact, if testamentary capacity is challenged in Colorado, Breeden dictates that a “sound mind” includes passing both tests.

The Cunningham Test

In Cunningham v. Stender (Cunningham, 255 P.2d 997 [Colo. 1953]), the court determined there are five key elements related to being of sound mind. The testator, or person writing the will must:

  1. Understand the nature of his or her act in making a will (the person needs to know he/she is writing a will),

  2. Know the extent of his or her property (what does he/she own),

  3. Understand the proposed testamentary disposition (what happens to the property when the will is executed),

  4. Know the natural objects of his or her bounty (who a probate court would see as the people who should inherit the estate if no will were in place—usually a spouse and/or children), and

  5. Understand that the will represents his or her wishes.

Under Cunningham, these are the qualities an individual must possess in order to be deemed competent to write and sign a will. And, it is a fairly low bar. For example, it is not necessary for an individual to know exactly how much money he/she has in order to meet Criteria #2. If the testator knows there are several houses, some antiques, and roughly $10-$15 million in the estate, that is typically close enough.

If a person cannot pass the Cunningham Test, it is almost always because of impaired cognitive processes such as dementia. Sometimes, a severe mental illness or severe substance abuse can cause incapacity, although this is rare. And, a cognitive problem, mental illness, or substance use disorder is not necessarily indicative of incapacity—the mental problem must cause a person to fail on one of the five Cunningham prongs.

This is not the correct Cunningham. If you thought it was, you failed a different Cunningham Test.

This is not the correct Cunningham. If you thought it was, you failed a different Cunningham Test.

The Insane Delusion Test

From Breeden, The Colorado Supreme Court differentiates what capacities a person must possess (Cunningham) from one major problem a person should not possess: the insane delusion.

This delusion is a persistent belief “which has no existence in fact and which is adhered to against all evidence.” The delusion must also materially affect the dispositions listed in the will. For example, if a father thinks his wife cheated on him with extraterrestrials and his children are the product of that cheating, it would be an insane delusion if he were to use that “fact” to write the children out of the will. On the other hand, if the father believes his children are aliens but he loves them anyway, thus leaving them in the will, that would not count as an insane delusion under Breeden. That would just be a regular delusion that has no material effect on the dispositions in the father’s will.

The basic presumption is that a will is considered valid and was signed by someone “of sound mind” if it meets all of the other statutory requirements. There are ways of limiting the ability for people to contest a will after the testator’s death, and they typically include having an evaluation done by a psychologist prior to signing a will to document an opinion that the person is of sound mind—attorneys typically suggest their client do this if the testator is elderly and doing something controversial in the will like writing out a natural heir.

In future blog posts, I will explain how psychologists test for Cunningham and Insane Delusions, and what happens if a will is contested after the testator has passed away.

I’ll also discuss a huge (and sometimes overlooked) issue related to the validity of a will: undue influence.

In the meantime, keep in mind that a person is allowed to be a jerk. It’s his money, and he can write you out of the will for terrible reasons, as long as he passes Cunningham and those reasons are not insane. If he doesn’t like you because he’s a terrible person, you’re out of luck. If he doesn’t like you because he thinks you’re an alien, you may have a shot at contesting the will.

Max Wachtel