What happens if a testator lacked capacity when creating their will?

On Behalf of | Aug 11, 2023 | Will Contests

Family members and beneficiaries sometimes worry that the will someone has drafted isn’t accurate and legally valid. One of the more common concerns has to do with someone’s testamentary capacity or legal ability to enter a binding agreement.

The effects of age often lead to issues with memory and cognition that diminish someone’s ability to create legally binding testamentary paperwork. Older adults are more vulnerable to pressure from outside parties and might make changes to estate planning paperwork later in life that seemingly contradict their long-standing preferences. They might also fall into unhealthy patterns of thinking that ultimately influence what they believe should happen with their legacy.

What happens if family members believe that someone lacked testamentary capacity when they drafted or revised their estate planning paperwork for the last time?

The family may initiate probate litigation

Provided that family members have some kind of evidence to support their claims, they might be able to go to probate court and ask a judge to intervene when an estate plan seems to be the result of someone’s declining cognitive ability and not their true lifelong wishes. Those asking the courts to set aside a will or similar documents need evidence to convince a judge that doing so is appropriate.

Medical records showing that someone had debilitating conditions, like dementia, can help. So could financial records showing that an individual was incapable of managing their own resources or the testimony of witnesses who can affirm that someone no longer had the same rational approach to personal matters in their last months as they did throughout most of their life.

Provided that the courts agree with the claim that someone lacked capacity at the time that they drafted or updated their documents, the courts may invalidate or set aside those documents. They may either defer to older estate planning paperwork or apply intestate succession laws that determine how people divide the property of those who die without a will.

Although it can delay estate administration, going to probate court over concerns about someone’s capacity and last wishes could help uphold their desired legacy when there are questions about their final documents. Understanding the value of going to probate court may help those who want to see their loved one’s wishes upheld to make informed decisions about their options.



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