Whatever the reason may be, many put off estate planning.  Often times, we receive a call from someone stating their loved one has dementia and has no legal planning documents in place.  At this time, whether or not they can still implement estate planning documents relies on the capacity of the loved one.

For example, in order for a will to be valid, the person signing must have “testamentary capacity”.  This means that they must understand the implications of what is being signed.  Simply being labeled as having a mental illness does not constitute their inability to sign documents.  As long as there are periods of lucidity, they may still be competent to sign a will.

When implementing legal planning documents, such as a will, your attorney should do an evaluation to see if your loved one lacks capacity.  Generally, if the following criteria are met, you are considered mentally competent to sign a will:

• You understand what a will is and how it disposes of property
• You remember who your descendants and relatives are and can articulate your wishes as to who should inherit your property
• You know what and how much you own
• You understand how all these things relate to one another and come together to form a plan.

Should a family member be unhappy with the distributions and feel that the loved one lacked mental capacity while signing the will, they may contest the will.  In this case, if a will is found to be invalid, if there was a prior will, it may be reinstated or in the case that there was no other will, the estate may pass through the state’s intestacy laws.

In order to prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent.  To achieve this, the attorney may ask a series of questions to assess the level of competency.  They can also videotape the will signing or arrange for witnesses to speak to your competency.

Diagnosed or not, if you believe your loved one is starting to show signs of a mental illness and does not have their estate planning in place, it is imperative to contact an estate planning attorney today!

Marissa Kleiner
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717