Competency to Write a Will

An important concept in the law is that of “competency”.  In lay terms, we refer to someone’s competency to perform an act or task. Typically, if someone is competent at a job they meet at least a minimum standard of proficiency.  Conversely, if someone is incompetent, they simply don’t get the job done very well.

In the context of the law the concept of competency is much different.   Competency refers to a legal standard that must be met in order for certain acts to be valid.  If someone is competent legally speaking, that person has the presence of mind, the mental ability and the age required for that conduct to be valid under the eyes of the law.

A person could be legally competent, yet performs a task incompetently!  And, conversely, a person could be competent to perform the task, but legally incompetent because they are only 16 years old.

But it gets more complicated.  The law uses different standards of competence for different acts.  This is relevant in the context of wills and here’s why:  The standard of competency for someone to write their will is very, very low.  So, someone who is NOT legally competent to enter into a contract may still be legally competent to write their will.

Georgia’s standard is a four-prong test:

1.  The testator must understand the nature of the act he is doing.

2.  He must know the nature and character of his property.

3.  He must know the objects of his bounty.

4.  Understands the disposition he was making.

This basically means the testator must know that he is signing his will, he knows what he owns, he knows who he’s giving it to and that he is, in fact, giving his property to the beneficiaries upon his death.

Additionally, these mental qualities need only be present when the testator actually signs the will.   Before or after the will signing, the testator could be completely insane or irrational!  This is referred to as a “lucid interval”.

To emphasize just how low this competency standard is, let me recall a law school case that illustrated this point.  The case was from the late 1800s but is still on point.  A woman wanted to write her will.  She had the irrational belief that her neighbors, whom she despised, lived in her teeth.  Yes, in her teeth!  She disliked them so much that she pulled all of her teeth to get rid of the neighbors!  Nonetheless, this woman was deemed legally competent to write her will.  (She was probably NOT competent to enter into a contract.)

Besides this, Georgia law also requires that the testator be 14 years old.  If you are only 12 years old, you write a will, and then die at 23, your will would be invalid because when you wrote it, you were legally incompetent because you were younger than 14 years old.

If you have any questions about competency, contact an Atlanta Estate Planning Attorney to get your questions answered!