When Dementia Affects Estate Planning

By Kent Berk on January 30th, 2014 in BLOG, testament capacity, WILL CONTESTS, WILL VALIDITY

Dementia is a devastating disease, not only for the person affected but also for his or her family. And unfortunately, the consequences of the person’s dementia can continue after his or her passing. How?

A person’s dementia can call into question his or her ability to make a will and divide property, which can lead to a will contest. 

In order to make a valid will, a person needs to have what’s called testamentary capacity. In Arizona, this means that the person knows what a will does, knows what property he or she has, and knows who his or her family is. Essentially, the person needs to know what a will is and the consequences of signing it.

Because dementia worsens a person’s ability to make decisions, it can impact his or her testamentary capacity. However, the fact that a person has dementia does not necessarily mean that he or she is incapable of creating a will. In fact, Arizona courts have set a high bar for those seeking to prove that a person did not have testamentary capacity.

Still, as the number of Americans suffering from dementia has increased, so has the number of challenges to their wills. This is especially true in cases where people with dementia have drastically changed their wills. While minor changes can be normal, sudden and significant changes seemingly made without rhyme or reason could be a sign of a lack of testamentary capacity.

If your loved one has dementia, it is important for him or her to make legal arrangements as soon as possible, before he or she lacks the reasoning skills to make informed decisions. You can talk to an estate planning lawyer and, if necessary, a medical professional to find out whether or not your loved one has the ability to create a will. The Alzheimer’s Association has a number of helpful resources to help people with dementia and their families plan ahead.

If your loved one has recently passed away and you believe that his or her will was made while lacking testamentary capacity, please contact us. We would be glad to talk to you about your situation and let you know if you have grounds to challenge the will.