Generally there are two primary grounds to challenge a will or trust: (1) lack of testamentary capacity, or (2) undue influence. The mental capacity to execute a will or a trust is not the same as the capacity necessary to enter into a business agreement. Basically, the person signing the documents must be able to identify their closest living relatives, identify their assets, and understand who is receiving the assets under their estate plan. Often claims of lack of testamentary capacity are made in conjunction with claims of undue influence. If the estate plan reflects the wishes of the person exerting the influence as opposed to the person making the plan, undue influence may exist.
Because mental capacity can be fluid, one of the toughest issues we have to address is determining whether a person with diminished capacity has sufficient capacity to create a will, trust, power of attorney, etc. The Alzheimer’s Association has articulated ten early symptoms or signs of Alzheimer’s or dementia.
- Memory loss that disrupts daily life
- Challenges in planning or solving problems
- Difficulty completing familiar tasks at home, at work or at leisure
- Confusion with time or place
- Trouble understanding visual images and spatial relationships
- New problems with words in speaking or writing
- Misplacing things and losing the ability to retrace steps
- Decreased or poor judgment
- Withdrawal from work or social activities
- Changes in mood and personality
If you are experiencing or have been diagnosed with early signs of Alzheimer’s or dementia, you should take care of any necessary planning while your capacity is still sufficient. If there is any doubt, seeking a doctor’s assessment may be a wise idea. Additionally, a video of the signing ceremony may be in order.