Also known as: testamentary intent
Written by attorneys · grounded in primary & secondary sources — see below
A historical Latin phrase denoting the testator's expression of intent that a document operate as a will upon death. The presence of testatio mentis raises a presumption of testamentary intent that may be rebutted by clear and convincing evidence of a collateral purpose.
After Tonya Takahashi died, her children petitioned to establish intestacy while a later document was offered as her will. The children bore the initial burden to show death, venue, and heirship. The proponent then had to establish prima facie due execution, including that the document reflected Tonya Takahashi's testatio mentis rather than a non-testamentary purpose.
Trevor Tate signed a document reciting that it was his last will and leaving property to his girlfriend. Extrinsic evidence showed he executed it only to induce her to remain in the relationship. The court treated the recitals as creating only a rebuttable presumption of testatio mentis and refused probate once the sham purpose was proved.
Select any source to read its text and confirm it supports the definition.
After Theresa Tucker's death, her estate's attorney resisted disclosure of notes taken during will drafting. The court held that the attorney-client privilege survived but recognized an exception allowing disclosure when heirs litigated whether the document truly reflected Theresa Tucker's testatio mentis.
Charles Kuralt wrote a letter to Patricia Shannon stating he wanted her to have his Montana property. The court examined extrinsic evidence of their relationship and his statements to determine whether the letter expressed Kuralt's testatio mentis and therefore qualified as a valid holographic codicil.
A testator's will left park land to a city for use by white persons only. After the racial restriction was invalidated, the court examined whether the testator's overall scheme still reflected testatio mentis for the charitable purpose or whether the invalid condition defeated the gift entirely.
A contestant must present clear and convincing evidence that the document was executed for a collateral, non-testamentary purpose rather than with the intent that it operate as a will at death.
No. Standard recitals such as 'this is my last will' create only a rebuttable presumption. Extrinsic evidence remains admissible to show the document was a sham executed for another purpose.
The proponent of the will must first establish prima facie due execution. The contestant then bears the burden of persuasion on lack of testamentary intent or other grounds for invalidity.
Yes. Extrinsic evidence, including statements by the decedent and surrounding circumstances, may be considered to determine whether the document was executed with the requisite intent that it operate at death.
…he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White…