Testamentary Capacity: The Core Legal Requirement
A dementia diagnosis does not automatically prevent a person from making or changing a will. The central legal issue is whether the individual possesses testamentary capacity at the time the document is executed. This is a lower standard of mental competence than that required for other legal actions, like entering into a contract. A person is considered to have testamentary capacity if they can meet four criteria established by case law, such as the landmark English case Banks v. Goodfellow.
The Four-Part Test for Testamentary Capacity
For a will change to be considered valid, the person making the change must understand:
- The nature of the act they are performing: They must comprehend that they are signing a legal document that will determine how their property is distributed after their death.
- The nature and extent of their property: They must have a general awareness of their assets and their value. They do not need to know every single detail, but they must understand the overall scope of their estate.
- The 'natural objects of their bounty': This refers to the people who would naturally stand to inherit from them, such as their children, spouse, or other close relatives. They must know who these people are and understand their relationship with them.
- The disposition of their property: They must understand how the specific provisions of the new or changed will distribute their assets and that these provisions align with their wishes.
Challenging a Will on the Basis of Dementia
If a family member believes a loved one with dementia lacked the necessary mental capacity or was coerced into changing their will, they can file a will contest in probate court after the person has died. The burden of proof typically lies with the person challenging the will to prove that the testator lacked capacity at the time the will was signed.
The Issue of Undue Influence
Alongside a lack of testamentary capacity, a will change can be challenged on the grounds of undue influence. This occurs when a person, often in a position of trust or power, pressures or manipulates the individual with dementia into changing their will for the influencer's benefit. A person with dementia is considered particularly vulnerable to such manipulation due to their cognitive impairment. Suspicious circumstances, such as a new caregiver or family member suddenly receiving a large inheritance while other heirs are disinherited, are major red flags for the court.
Safeguarding a Will Change with a Dementia Diagnosis
If a person with dementia wishes to alter their will, it is crucial to take preventative measures to protect the changes from future legal disputes. The process requires thorough documentation and careful adherence to legal procedures. Some steps that can be taken include consulting with an elder law attorney and obtaining a medical evaluation.
Best Practices for Changing a Will with a Dementia Diagnosis
| Action | Purpose | How It Helps | Potential Risks |
|---|---|---|---|
| Obtain a medical evaluation. | A doctor can assess the individual's mental capacity at the time of signing. | A medical professional's report serves as strong evidence in court that the testator was of sound mind. | A poor evaluation or a lack of documentation can be used against the will in a contest. |
| Have disinterested witnesses. | Witnesses who are not beneficiaries provide unbiased testimony about the testator's state of mind. | Their testimony can confirm that the testator was acting voluntarily and not under undue influence. | The will could be challenged if the witnesses are found to have a personal interest in the estate. |
| Videotape the signing. | A video recording captures the testator explaining their wishes and demonstrating their lucidity. | A video provides compelling visual evidence of the testator's mental state and confirms they were not coerced. | The recording can be used as evidence against the will if the testator appears confused or influenced. |
| Hire an experienced attorney. | An elder law attorney ensures all legal procedures are followed correctly. | A specialized attorney understands the complexities of dementia and will contests, minimizing legal vulnerabilities. | Using an inexperienced attorney might leave gaps in documentation that a will contestant could exploit. |
The Role of Lucid Intervals
It's important to understand that capacity can fluctuate in a person with dementia. A person may have moments or periods of mental clarity, known as a 'lucid interval,' during which they may still have the capacity to make or change a will. A will or codicil made during a lucid interval can be legally valid, even if the person was generally of unsound mind. However, proving that a will was made during such an interval is difficult and requires extensive medical and testimonial evidence.
Conclusion
While a person with a dementia diagnosis can legally change their will, the validity of such a change is determined by their testamentary capacity at the exact time of signing. This is a complex legal area, and any changes made after a diagnosis should be handled with extreme care and thorough documentation. Involving experienced elder law attorneys, obtaining medical evaluations, and documenting the process can create a robust defense against potential will contests, ensuring the individual's final wishes are honored and protected.
For more information on legal options surrounding dementia, see the Alzheimer's Foundation of America website.
Additional Considerations and Evidence
To contest or defend a will with a dementia diagnosis, legal proceedings often involve reviewing significant evidence. Medical records, solicitor's notes, and witness testimonies are crucial. Other evidence can include financial records that show unusual transactions or recordings of the will signing process itself. The specific evidence required and the legal standard will depend on state laws.
The Aftermath: What Happens After a Will Contest?
If a court finds that a will change made by a person with dementia was invalid due to lack of capacity or undue influence, it will typically be thrown out. If the invalid will replaced an earlier, valid will, the previous version may be reinstated. If no other valid will exists, the estate may be distributed according to the state's intestacy laws, which divide assets among close relatives based on a statutory formula.
Final Recommendations
If you have a loved one with a dementia diagnosis who wishes to change their will, act proactively and transparently. Consult an elder law attorney to determine the necessary precautions based on your jurisdiction and the individual's specific condition. Ensure all steps are meticulously documented to create a clear record that can stand up to potential legal challenges down the road. Addressing these issues early can provide peace of mind and protect the individual's wishes.
