If someone updates their will after beginning to show signs of memory loss or early cognitive decline, how does the court determine whether that person had the mental capacity to make those changes? Would the updated will still be considered valid, or could it be challenged later based on questions about competency?
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.
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
If you have someone trying to persuade the memory loss person into changing their will it could be "undue Influence".
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.
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.
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.
I’m in Southern California, and a friend’s family is going through something similar so I was just wondering about this sort of situation. They're working with some local estate litigation firm, Albertson & Davidson, and I think that is definitely giving them some peace of mind (especially since they reached out before things escalated).
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.
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.
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.