Establishing an estate plan is a standard right extended to most legal adults. Anyone over the age of 18 can potentially draft a will and other estate planning documents to protect themselves, provide for family members and establish a legacy.
Most adults can create or update estate planning paperwork whenever they choose. However, sometimes other people may question the validity of those documents after an individual dies. Specifically, they may have questions about the testator’s state of mind. Individuals have to be of sound mind to draft a will. In other words, they need to have testamentary capacity.
When can family members ask the probate courts to intervene because a testator may have lacked testamentary capacity?
Several issues can compromise capacity
There are usually three main reasons why people question the testamentary capacity of an individual. The first is advanced age. The second involves medical challenges often associated with advanced age, such as Alzheimer’s disease or dementia. The third has to do with severe and intractable developmental disorders or mental health challenges.
Some people never have testamentary capacity because they have lifelong developmental or mental health challenges. Those who require guardianship as an adult due to congenital conditions like Down syndrome and autism may never have the necessary capacity to establish legal estate planning paperwork.
Others might lose that capacity after their diagnosis with particularly severe mental health disorders. Conditions like schizophrenia can impact an individual’s understanding of the world and prevent them from drafting appropriate documents based on the reality of their circumstances.
Contrary to what people often think, advanced age on its own is not enough to raise questions about a testator’s capacity when they created or updated their estate planning paperwork. Instead, there needs to be proof of a debilitating medical condition or significant cognitive decline. Those struggling with dementia may no longer have the capacity necessary to enact valid documents.
When challenging an estate plan based on a lack of capacity, the burden of proof falls to the plaintiffs. They generally need to prove that the testator did not understand their circumstances and therefore could not create valid documents.
If an individual can no longer remember what property they own, they may lack testamentary capacity. The same is true of individuals struggling to remember who is in their family or to make sense of what consequences their estate planning documents might generate.
Medical records and testimony from those who regularly interacted with a vulnerable adult could help affirm claims that an individual lacked capacity. Pursuing probate litigation can lead to the courts setting aside questionable estate planning documents. Those who suspect a lack of capacity may need to review the situation carefully with a legal team to determine if the courts may agree with their worries.