If a loved one has recently been diagnosed with dementia or another cognitive abnormality, it may not be too late for them to create a will. However, there are some potential problems with creating a will after a diagnosis of Alzheimer’s or dementia. Signing a will now, even after diagnosis, could be your loved one’s last best chance to dispose of property in a manner that is consistent with his or her wishes. In order to lessen the likelihood of a challenge to the will, certain criteria must be followed.
Considering that 64% of Americans don’t have a will or other type of estate plan and 5.5 million Americans have been diagnosed with Alzheimer’s (present in 60 – 70% of people with dementia), you can easily see that there are hundreds of thousands of Americans who have not created an estate plan until after they begin suffering from symptoms of dementia. Waiting until after a diagnosis of Alzheimer’s or dementia can lead to unintended and devastating consequences that might result in costly litigation and further lead to division among family members.
A common situation our firm sees is one where a will is created after the testator was diagnosed with dementia. Then, someone who is left out of the will or does not approve of how the assets are being distributed, contests the will claiming that the testator lacked the testamentary capacity to sign it. The term “testamentary capacity” essentially means that the person authoring the will must understand the nature and the content of the document that they are signing.
If a court agrees with the challenger and determines that the will is invalid, the court will typically look to a prior will because the law prefers that the testator’s estate be distributed under a prior will, as opposed to the laws of intestacy which is how the court distributes a person’s assets if they don’t have a will. The problem with either scenario is that the testator probably did not want their estate distributed either by the terms of an old will or by the laws of intestacy. Ensuring that your assets go where you want them to is why you need to create a will or estate plan, if not before you are diagnosed with dementia, then certainly shortly thereafter.
How Does the Court Decide if a Person with Dementia Is Capable of Executing a Will?
If the testator is suffering from Alzheimer’s or dementia, they do not automatically lack the required testamentary capacity to execute their will. As long as the testator has periods of lucidity and the testator signs the will during one of those periods, a court can rule that the testator had the necessary capacity to sign a will. Generally speaking, “periods of lucidity” means periods of time where the testator knew what was going on, was thinking clearly and actively participated in the execution of the will.
There are three generally accepted criteria that must be proven in order for a court to determine whether someone was mentally competent when they signed their will.
- First, the testator must have understood what property they own. This means that the testator must know what they own and how much they have.
- Second, the testator must remember and understand who their relatives are and be able to articulate who should inherit their property and how much that person should receive.
- Finally, the testator must understand that a will disposes of his or her property at death.
Demonstrating that a testator meets these 3 criteria is a complex topic I will address in the near future.
Waiting until the last minute to create a clear, coherent plan for the distribution of your estate is seldom a good idea. In this age when people are living longer, more and more people are becoming afflicted with Alzheimer’s and dementia. Many of those people are simply waiting too long to put their affairs in order. The best advice is to talk to a competent estate planning lawyer about creating a plan at a time when you are able to understand things and you have the capacity to put a well-thought-out plan in place.
If you have a loved one who has recently been diagnosed with Alzheimer’s or dementia and you are concerned that they may not have their affairs in order, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC. We’ll be happy to discuss their situation, their capacity to make a will and recommend a course of action that best honors their intentions.