Tuesday, December 7, 2010

How to challenge a will - testamentary capcity.

In my earlier post I wrote about how a will can be challenged if it was not properly signed an witnessed. In this post I will talk about challenging a will because the person writing it did not have the metal capacity to make a will.

In order for a will to be valid, the person writing it must have what is called “testamentary capacity.” That means the person must be able do four things. Those things are:

  • Know the “natural objects of his or her bounty,” In practice this means the person writing the will must be able to name his or her her children without prompting.
  • Know the nature and extent of his or her property. This means the person must be able to describe in general terms what he or she owns.
  • Understand that the person is signing a will.
  • And know what the will accomplishes. The person must know who will get his or her money under the terms of the will and who has been cut out.

The standard for legal capacity doesn’t require much of a person. The only lower standard in law is that necessary to get married. There are two common reasons why an elder might not be able to do the four things described above. The first is delirium. The second is dementia.

Delirium is a loss of cognitive ability due to an illness or as a side effect of drugs. Most elders who have a serious enough medical condition to put them in the hospital will be suffering from delirium. If they get better and off the drugs they are receiving, the delirium will go away, but while in the hospital they will seldom have the cognitive skills necessary to devise, read and understand a will.

The law recognizes “lucid intervals.” A lucid interval is a period of time in which a person who generally does not have testamentary capacity comes out of it long enough to write a will. Not surprisingly, when the family and lawyer show up at the hospital to present Aunt Nell with new will, they find her in the midst of a lucid interval and ready to do a new will. Geriatric psychiatrists think this is a bunch of crap. If the person doesn’t have the capacity to get out of the hospital bed and get down to the lawyer’s office, there is a good chance he or she doesn’t have the capacity to understand a will.

Elders can also suffer from dementia. Dementia is a general term for loss of cognitive ability. It can be caused by Alzheimer's disease, small strokes, alcoholism, or other medical conditions. Unlike delirium, dementia does not get better.

Dementia can be hard to spot. One of the reasons for this is that a person’s conversational and social skills are often the very last skills to go. An elder may be able to have a very pleasant conversation with you, yet be completely unable to make the kinds of judgments necessary to manage money or devise an estate plan. In the past, mental health professionals used the mini-mental state exam to measure cognitive loss in dementia sufferers. That exam has gone out of style and most mental health practitioners currently use the SLUMS. The SLUMS is a test that relies less on memory and orientation and focuses more on the kind of decisions used in analysis and decision making. Neither of these tests can tell you whether a person can do the four things necessary to write a will, but they do give a quick summary of a person’s reasoning skills.

If a will is admitted to probate, it can be challenged on the grounds that the person who signed it did not have testamentary capacity. By this time, however, the person who wrote the will is dead. The evidence of capacity will have to be obtained from witnesses and medical records. If the will was written by a lawyer and signed in the lawyer’s office, the person challenging the will have a tough time of it. The lawyer will testify that the person appeared to have capacity, or the lawyer wouldn’t have written the will. 

On the other hand, the presumption about lawyer-written wills is not as strong as it used to be. If there is strong medical evidence that the person who wrote the will could not have had testamentary capacity, the case for overturning the will may be a good one even if a lawyer was involved. Challenging wills is a complicated legal job. You need a lawyer, and preferably someone who has done it before.

Not a lot of wills are challenged on the grounds that the person who signed it did not have capacity. Most people who want to challenge a will look to what is called “undue influence.” That will be the subject of my next post.