How to Avoid a Will Contest Based on Lack of Testamentary Capacity
If a dispute arises over whether the testator had testamentary capacity to make a valid will, it almost always happens after the testator is deceased. As a result, the final determination of testamentary capacity may rest on the testimony of witnesses and records made about the testator’s mental state and condition at the time the will was executed. What steps can be taken to make the testamentary document less vulnerable to a contest or challenge?
If there is a concern that an heir may contest the will or living trust based on an issue such as competence, there are several steps that can be taken to ensure the testator’s estate plan is upheld after death, including the following:1.The will and all other estate planning documents should be drafted by an experienced estate planning attorney. See
finding an attorney.2.The attorney should be made aware of any specific concerns about a will contest so the attorney can advise the client accordingly and prepare notes regarding the attorney’s interaction with the testator.3. The attorney should be asked to prepare a self-proving affidavit that can be executed by the testator and the witnesses at the time of the will signing. See Self-Proving Wills.4. The will signing should be videotaped if recommended by the attorney.5. If the circumstances warrant, a qualified psychologist or physician can be retained to examine the testator and prepare a written evaluation of the testator’s capacity. For information on obtaining a letter or affidavit from a physician, see
Letter Competent Will.6.The witnesses to the will signing should be reminded of their responsibility to carefully observe the testator during the will signing and that they may be called upon to testify at a later date.7. A no-contest clause may be included in the will or living trust if enforceable under applicable state law.For more detailed information on how to make a valid will or estate planning trust, especially when there are issues surrounding testamentary capacity, refer to the Will and Trust Books.
Alzheimer’s Disease, Dementia and Estate Planning
Dementia is a term used to describe a group of symptoms caused by various health conditions that affect the brain. People suffering from dementia experience a decline in cognitive and intellectual function as well as memory loss. Alzheimer’s Disease is the most common form of dementia.According to the Alzheimer’s Association, as many as 16 million Americans will have Alzheimer’s Disease by 2050. Alzheimer’s is an irreversible, progressive brain disease that slowly destroys memory and thinking skills. Eventually, a person suffering from Alzheimer’s loses the ability to perform the basic tasks involved in daily life without assistance.Many Americans put off
estate planning until their senior years. Unfortunately, this is the time when many seniors will begin to experience the symptoms of Alzheimer’s or dementia. The law requires a person be of sound mind and competent to make a will, living trust or other testamentary instrument. Health conditions that impair cognitive skills or memory can interfere or even prevent a person making an estate plan, which can be so important to the legacy one leaves behind.One of the requirements to make a valid will is testamentary capacity. If a person does not have testamentary capacity, any will he makes is subject to challenge. The legal standard for testamentary capacity varies from state to state because wills, living trusts, and other forms of estate planning are governed by state law. In general terms, to have testamentary capacity to make a valid will, the testator must understand: a. the nature and effect of a will; b. the nature and extent of his property; c. his natural heirs, also referred to as the natural objects of his bounty, regardless of whether such heirs are to receive any inheritance; and d. the manner in which he is leaving his property under his will. Because the standards for testamentary capacity are based on state law, the legal definition of testamentary capacity may be slightly different in your state.A person may still be able to make a valid will or living trust after being diagnosed with dementia or Alzheimer’s, provided he has testamentary capacity at the time of executing the estate planning document. The law presumes a testator is capable of making a will, so the burden of proving the testator lacked testamentary capacity is on the party challenging the will. Several courts have held that a testator can possess the testamentary capacity to make a will even after being diagnosed with Alzheimer’s. The key issue in such a case is whether the testator had capacity at the time the will, living trust or other testamentary instrument was executed.
Source: http://pennyborn.com/Although it is possible for a person with Alzheimer’s or dementia to make an estate plan, any will or living trust they make is more likely to be contested by a disgruntled heir, resulting in a will or trust dispute. Also, as Alzheimer’s or dementia progresses, the symptoms usually become more severe. If the testator is confused about the people whom would naturally inherit his estate, has difficulty with language, suffers from memory loss, or is unable to explain how he would like his property distributed, the testator may be unable to make a valid will or living trust. A person suffering from dementia is also especially vulnerable to inheritance theft.
Key Legal and Financial Issues to Consider
If you are caring for someone with dementia or Alzheimer's, you may be unsure about how to help them with financial decisions, estate planning decisions, and legal matters that must be addressed. This can be very difficult if the person suffering from diminished capacity is independent, secretive or does not want you involved in their affairs.Eventually, you will know something must be done, but will probably be unsure what steps to take. Consult a trusted professional such as your family attorney or financial advisor. A licensed professional can provide guidance on how to properly handle the legal and financial affairs of another person. Copyright 2020 Pennyborn.com. ALL RIGHTS RESERVED.
Updated January 27, 2020.
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