38 C.F.R. § 3.355

Testamentary capacity for insurance purposes

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When cases are referred to a rating agency involving the testamentary capacity of the insured to execute designations or changes of beneficiary, or designations or changes of option, the following considerations will apply:

(a) Testamentary capacity is that degree of mental capacity necessary to enable a person to perform a testamentary act. This, in general, requires that the testator reasonably comprehend the nature and significance of his act, that is, the subject and extent of his disposition, recognition of the object of his bounty, and appreciation of the consequence of his act, uninfluenced by any material delusion as to the property or persons involved.

(b) Due consideration should be given to all facts of record, with emphasis being placed on those facts bearing upon the mental condition of the testator (insured) at the time or nearest the time he executed the designation or change. In this connection, consideration should be given to lay as well as medical evidence.

(c) Lack of testamentary capacity should not be confused with insanity or mental incompetence. An insane person might have a lucid interval during which he would possess testamentary capacity. On the other hand, a sane person might suffer a temporary mental aberration during which he would not possess testamentary capacity. There is a general but rebuttable presumption that every testator possesses testamentary capacity. Therefore, reasonable doubts should be resolved in favor of testamentary capacity.

[26 FR 1590, Feb. 24, 1961]

Notes of Decisions

Cited in 4 cases, 1997–2010 · leading case: Rice v. Off. of Servicemembers' Grp. Life Ins., 260 F.3d 1240 (10th Cir. 2001).

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Rice v. Off. of Servicemembers' Grp. Life Ins., 260 F.3d 1240 (10th Cir. 2001). “We also draw support from the Department of Veterans Affairs, which in administrative proceedings involving the validity of a change in beneficiary applies a “general but rebutta-ble presumption that every testator possesses testamentary capacity.”

In Re Est. of Romero, 126 P.3d 228 (Colo. Ct. App. 2005). · cites it 2× “” 38 C.F.R. § 3.355 (c). The regulations provide that there is a general but rebuttable presumption that every testator possessed testamentary capacity and reasonable doubts should be resolved in favor of testamentary capacity.”

Elias v. Brown, 10 Vet. App. 259 (Vet. App. 1997). · cites it 3× “Standard of Review Regarding the considerations applicable to determining a veteran’s testamentary capacity to execute changes of beneficiary, 38 C.F.R. § 3.355 (1996) provides: When cases are referred to a rating agency involving the testamentary capacity of the insured to…”

In Re the Est. of Berg, 2010 SD 48 (S.D. 2010). · cites it 3× “3 No determination was ever made by the VA as to Fred’s testamentary capacity under 38 C.F.R. § 3.355 . 4 [¶ 8.] After Fred was found incompetent under 38 C.”

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