If a parent updates their will after showing signs of memory loss, will that version still hold up legally?

Was the parent able to contract the attorney on their own & get there with no help? Did anyone sit in with the parent at the attorney’s when they were changing their will?

These are all valid questions that you need answered. A good litigation attorney will get the facts. There is so much exploitation going on with the elderly usually by known family members. Do some research & you’ll see what I mean.

prettyflowers19: Retain an attorney.

I live in Texas. My mother has Alzheimer's. Her attorney advised me that memory loss does not necessarily keep them from making decisions, but it requires extra effort and documentation. The attorney who made changes to the will should have taken steps to ensure that the person he was working for was still able to make decisions like this. He should be where only the attorney and the client are present so he can ask questions and try to ascertain that they understand and did not make the decision under duress. If not, IMHO, the attorney will have to answer for his decision to move forward and, yes, the will could be invalidated.

You might want to talk to a probate lawyer soon. If your parent had memory loss when they changed their will, it could affect whether it’s valid. Gather any medical records or witness info you can. Laws and deadlines vary by state, so local legal advice is key.

Always consult an attorney.
Consult medical provider.
I believe the court will require- and depend on for their legal opinions - medical provider documentation regarding cognitive functioning / diagnosis.

Gena / Touch Matters

Look up "Undue Influence"
If you have someone trying to persuade the memory loss person into changing their will it could be "undue Influence".

I think you question would best be posed to a lawyer.
I'm no lawyer, but I think the court has no way of knowing the competency of the decedent, and would only be brought up if someone were to challenge the will.
It could be challenged by an interested party (a legal heir) based on questions about competency, but the plaintiff will have the burden of proving incompetency.

It seems to me the changing of the will must be done with a lawyer. Or should be, anyway. And that person should ensure the person changing their will is of sound mind and is not doing so under duress.

Based on my experience as Executor 3 times, most probate attorneys do NOT do litigation at all. Its speciality practice work. If your friends have paid a retainer to a law firm that does litigation, I hope the estate has serious assets to make it worthwhile. That it’s not about “mom loved you best” feelings. And if your friends do not themselves live in the County where the deceased lived (& where will entered) and their attorneys as well, that from the start imo that will put them off to a bad start.

I wouldn’t be at all surprised if the judge places it to be a Dependent Administration with a court appointed Executor. Not whomever named in the will or the codicil being contested, Dependent will mean that all actions have to have court approval so this will be a slog.
Gawd, I hope for your friends sake & sanity, there is crap ton of assets, to make this worthwhile.

This is a legal question, as each state law differs as to the definition of mental capacity. In my state, the elder only needs to know who his children are and have an understanding of his assets. I highly recommend finding an elder law atty as opposed to drafting a will online. The atty and witness can then attest to mental capacity and greatly reduces the likelihood (and success) of being contested.

IMO, the person would have to have a formal diagnoses of decline to be prevented from updating a Will. The lawyer updating it should look for signs of Dementia before rewriting the Will. It would be very hard, I think, to claim cognitive decline with that diagnoses not being done before the update.

ANY will may be challenged. All you need to do is pay an attorney. And if you go to court presenting good EVIDENCE that there was not sufficient "legal capacity" to do legal documents, then a case of challenge may easily win.

It is up to an attorney to work with client you has some memory loss, to discuss with the diagnosing doctor, to ask to exam if necessary and to do the legal work to fully understand the client's capacity to change wills or trusts. This footwork is costly, but it will help to have it present in the case of suspicion that will or trust will be challenged in court.

Answer basically is that yes, there needs to be proof of capacity presented to attorney in the case of memory loss, before any changes are done by an elder who wishes to change his/her documents for POA, will, trust and etc.

Any will can be contested with legal standing. It is just a matter that there sound and proven evidence to challenge the legal standing of the will.

Even if the Will was a downloaded one, it would had to have been finalized in front of a notary with 2 non-family witnesses. So, the most recent version of their Will should meet the legally recognized standard, to start with.

If the person who recreated or amended their Will didn't have a diagnosis of incapacity, then it will be the burden of the contestors to prove the latest version was made when the principal didn't meet the standard for legal capacity, or was coerced. Not sure what it would take to do this, and it probably varies by state.

Generally a lawyer will talk to the person. If the lawyer is satisfied that the person understands what is being asked and responds appropriately they will go ahead and continue with the appointment. If the lawyer feels that the person does not understand then they will not allow changes to be made.

Does the person have a valid, documented diagnosis of incompetency from one or more doctors that was in effect before the will was written, signed, and dated with witnesses? If not, this may be difficult to prove.

The key is to prove that the person did not have the ability to understand what the will said, and/or that they were unduly influenced by someone. A person in the early stages might still be capable of comprehension, depending on the ways the cognition is declining.

So it will depend on how contentious and time-consuming, running up legal bills, the case will be, in relation to how much the inheritances involved are worth.

Lawyers cost $300 - $500 an hour. Paralegals on the case get paid too, but less. Does the possible challenger have that kind of money, and is the estate of considerable wealth to make a challenge worth it?

In my state, a provision in the will can state that if a beneficiary of the will challenges it, he loses the bequest that was provided for him. This discourages beneficiaries from trying to get more than they were bequeathed.

It's rarely worth challenging unless the deceased is very wealthy.

A will can be challenged in court after the person's death based on the person's competency to have made the changes. As with many legal matters, the living person(s) who might want to challenge the will have to decide whether it's worthwhile in terms of money (attorney fees, court costs), time, and potential permanent damage to family relationships to bring a lawsuit.