I recently wrote about the standards for determining undue influence and questioning the value of consulting with a neuropsychologist to determine capacity to sign a legal document. But what is the standard for incapacity?
The answer is that it's a moving target, often depending on the situation and the document to be signed. Further, in the absence of indications of undue influence, the attorney should be inclined to assist a client with questionable capacity to execute estate planning documents rather than refusing to assist the client.
Testamentary Capacity
Here's the legal standard for "testamentary" capacity, which is the capacity to sign a will:
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