A Strong Offense
A Stronger Defense
Under Georgia law, the standard for testamentary capacity requires that a testator remember generally what property is subject to the will’s disposition. You don’t have to know every dollar, where it is, or all your personal property. You just have to have some idea of what you have in order to give it away. While we’d like to quibble over how specific your knowledge must be about the extent of your property to demonstrate testamentary capacity, in Webb v. Reeves, the Georgia Supreme Court just told us that you don’t actually need to know the extent of your property as long as someone apprises you of it.
In this estate dispute’s second appearance here, a caveat was filed to the petition to probate the will of Joseph Thomas Schmidt on, among other grounds, lack of testamentary capacity. The Georgia Supreme Court looked at whether Schmidt was capable of knowing generally what property was subject to the will’s disposition and found that he was. The record evidence identified by the Georgia Supreme Court that Schmidt was aware of the extent of his property was:
- Prior to the execution of his will, Schmidt’s guardian and conservator told him that Schmidt had “thousands” in his estate (it was actually hundreds of thousands);
- Schmidt “has been told” that he had a “large” or “sizeable” estate;
- Schmidt was “uninterested in money”; and
- Schmidt never asked for more information about the extent of his holdings.
Based on this record, the Georgia Supreme Court concluded Schmidt knew enough about the nature and extent of his estate to have a decided and rational desire as to the disposition of his property.
Setting aside that some people probably consider “thousands” in an estate to be vastly different from “hundreds of thousands,” the Supreme Court never tells us that Schmidt independently acknowledged the nature and extent of his property which would seem to be the hallmark of whether a testator actually knows what his property is. Despite this opinion, estate planners should continue what is likely their practice of having a testator describe generally for them the extent of the testator’s property, who the testator’s family members are, and why the testator wants to dispose of property in a certain way if it is not devised to the natural objects of the testator’s bounty.