Estate planning should start at a relatively young age, particularly if you have children. Wills should be updated after each major life event, such as the birth of children or grandchildren, divorce and the death of benefactors or an executor.
There are instances when updates to a will performed after cognitive decline has begun may be challenged and invalidated. Here are the basics.
Some of us experience natural mental decline as we age, while others suffer from diseases like Alzheimer’s and dementia. It’s still possible to update an estate plan after a diagnosis, but there are caveats for updates made during this period that may be open to challenges in a formal probate setting. The concern, of course, is that the changes still reflect the individual’s wishes and are not influenced by their cognitive decline or other factors.
Proving testamentary capacity
If cognitive decline has begun due to age or disease, a judgment must be made about the individual’s “testamentary capacity.” This can be a complex judgment, as people with cognitive decline can experience extended periods of lucidity.
The individual must demonstrate they understand “the nature/extent of property; the natural objects of her property; the disposition that her will is making; and the ability to connect all of these elements together to form a coherent plan.”
An attorney usually assesses testamentary capacity. If the attorney believes the individual did not satisfy the requirements, they must refuse to prepare a will or proposed updates to an existing will. The attorney may request a written opinion from the individual’s doctor to help in this assessment.
When it’s not possible to execute a valid will
If the individual failed a testamentary capacity evaluation and had no prior will, the state’s intestate succession laws are applied to the estate distribution after the individual’s death.
There are situations outside of cognitive capacity when estate plan updates can be challenged, such as suspicions that the individual made updates under undue influence, such as elder abuse and exploitation. Any challenges must provide proof of undue influence and/or undermining of free agency through force or fear. Affection, care or gratitude do not qualify as undue influence.
Challenging an updated will
When challenging a will that may have been influenced by cognitive decline, the strongest evidence is presenting a previous will or other documentation that conflicts with the updated will. The challenge can be strengthened if you can demonstrate that individuals who benefit from the changes to the will used undue influence to make those changes happen.
Contact an attorney for a consultation if you have concerns about a loved one’s cognitive decline affecting a new will or changes to an existing will.