Testamentary Capacity vs. Capacity to Marry

Bridget Crawford (Professor of Law, Pace Law School) has recently posted her thoughts on the differences between the capacity to execute a will and the capacity to marry.  See Marriage of Fools, Feminist Law Professors Blog, Sept. 26, 2007.

Here is an excerpt from her posting:

Fools can marry, but they cannot make a last will and testament.  To state the principle more precisely, the mental capacity required to enter into a legally binding marriage is lower than the mental capacity required to execute a valid will.  A frequently-cited case on point is Hoffman v. Kohns, 385 So. 2d 1064 (Fla. App. 1980). * * *

In my view, the law is incorrect in concluding that the mental capacity needed to marry is lower than that needed to make a will.  The decision to marry is, without question, intensely personal, but its personal nature should not in any way diminish the threshhold showing of mental capacity that must be made.  Marriage is a decision with significant legal consequences, especially with respect to property.  Among the legal consequences  of marriage is the creation of a surviving spouse’s right to an elective share of the decedent’s estate.