Waiting too long to create an estate plan can raise a whole host of issues. One of the most consequential is concerns about testamentary capacity. To create a legally valid estate plan, the person who signs of the estate planning documentation has to have sound enough of a mind to understand the nature and extent of their assets, to whom they’re leaving those assets, and how these things come together to form a cohesive plan.
But as we age and our mental capacity declines, it can be harder to determine if the requisite mental capacity existed at the time of an estate plan’s creation. This can lead to estate litigation.
Can someone with Alzheimer’s or dementia create a binding estate plan?
They can, but whether an estate plan was properly executed is going to depend on the facts at hand. Those who suffer from Alzheimer’s and dementia often experience periods of lucidity, during which they may be able to demonstrate the requisite testamentary capacity.
On the other hand, if the testator was in the throes of memory loss and impaired cognitive functioning at the time that the estate plan was created, then it’s going to be challenging to show that the estate plan’s documents should hold up legally.
How can testamentary capacity be addressed in court?
When litigation arises over testamentary capacity, witness testimony is going to be crucial. While lay opinions and observations from family members and friends can be helpful in painting a picture of the circumstances, expert medical testimony may be necessary.
In some instances, recent visits to the doctor can provide insight into the testator’s mental capacity near the time of an estate plan document’s execution, so accessing medical records can be key.
Are there ways for an Alzheimer’s sufferer to avoid a challenge in probate court?
There are some steps that these individuals can take to reduce the risk that their estate will be challenged. These include:
- Visiting the doctor shortly before signing off on estate documentation to get an opinion about their cognitive and overall mental functioning.
- Giving gifts to those they expect to challenge the estate, as their acceptance of the gift can be considered an acknowledgement that appropriate mental capacity exists.
- Having plenty of witnesses present at the time of an estate plan document’s execution who can testify as to mental state at the time.
If you’re worried about proving mental capacity in these situations, get creative in finding ways to show cognitive clarity. There’s no such thing as too much evidence, and you’ll want to avoid leaving anything to chance if at all possible.
What to do if you’re concerned about a loved one’s mental capacity
If you’re on the other side of the fence and suspect that your loved one lacked testamentary capacity at the time they created their estate plan, then you’ll have to take action in probate court if you want to try to remedy the situation.
You’ll need to gather evidence to show that your loved one struggled to recognize their assets and understand how they were disposing of them in their estate plan, and circumstantial evidence can be helpful here. You’ll just have to be thorough and prepare yourself for the estate litigation ahead.
