The Capacity To Make A Will

Caring for an aging loved one with progressive dementia is hard - protecting their estate can be even harder. We're here to help.

My loved one wrote a new will during a period I know they were suffering from dementia and it's not what I was expecting­ what can I do?

The issue of whether someone has the capacity to make a will - called testamentary capacity - comes up frequently in the practice of estate litigation.

When a court looks at whether an individual had capacity at the time they signed their will they look at whether the evidence suggests that individual had the ability to understand the following:

  • The nature of the act of making a will and its effects;
  • The extent 0¬£ the property which they are disposing, that is to say, a clear appreciation of one's assets and liabilities; and
  • The claims of persons who would normally expect to benefit from the will - such as surviving spouses and immediate family members.

Individuals are presumed to have capacity unless a court decides otherwise - if you decide to challenge a will due to lack of capacity, you will need to prove it - usually through the introduction of medical records and the assessment of experts.

There is no definitive definition of what constitutes "capacity", nor is there a standard recognized test for determining capacity or competency. The court will make a decision based on the available evidence on a case by case basis.

The court might consider any of the following factors as grounds to overturn a will due to incapacity:

  1. The age, and medical history of impairment of the person making the will at the time the will was signed;
  2. The evidence of family and friends relating to whether the person making the will had significant memory problems at the time the will was made;
  3. Whether the person making the will was dependent on others who receive significant benefit under the will; and
  4. Whether the will marks a radical departure from previous wills without sufficient explanation for same; 

If you have concerns that a loved one may have made will without the requisite capacity to do so, the best action you can take is to contact a lawyer for an objective evaluation.

I've been diagnosed with dementia and I want to protect my estate - is it too late for me to write a new ill?

Even if you've been diagnosed with dementia or another form of progressive impairment, there may still be time to protect your estate. Working with a lawyer who understands and is experienced with capacity challenges - and is able to help you safeguard against them - is your best option.

A good lawyer will spend time with you to ensure you fully understand the ramifications of the decisions you're making, bow much your estate is worth, and the impact of your decisions on your family members before you sign. Taking concrete steps now could protect your estate from expensive litigation later. Call a lawyer for a free consultation today.

Filed Under
Will & Estates