Proving Lack of Mental Capacity to Challenge a Will is Much Harder Than You May Think

As we age, many of us start to lose some of our cognitive abilities. And it’s not just age, but the effects of age–disease, physical medical conditions, the progression of pre-existing mental illness, trauma, and lots of other factors, all which can lead to mental and cognitive decline in people as we age–experiences all of us know of, if we have relatives who are or who have, gotten up in age.

So, on the surface it would seem to be relatively easy to show that someone who executed a will, didn’t have what is known as the testamentary capacity to execute the will–that is, that the person making the will simply was not mentally competent to make the will and understand it.

And if that person also had some mental decline at the time the will (or amendments to one) was made–well, that would seem to make challenging the will on the basis of lack of mental capacity, even easier.

But think again.

The Time the Will Was Executed Matters

That’s because to challenge a will by challenging the mental capacity of the person making the will, you must show that the person didn’t have the mental ability to make the will (or changes to an already existing will) or understand what he or she was doing, at the time the will was executed.

That last part – “at the time the will was executed,” is what makes these challenges difficult.

Many people with dementia, or cognitive decline, or severe mental illness, may have good days and bad days. They may relapse, get worse, then seem better; they may be sharp for a few weeks and completely incapable for a few weeks after that. They can and often do have lucid moments, and so long as the will was executed during one of those moments, it is valid.

Even people declared legally incompetent aren’t necessarily excluded from ever making or executing a valid and legally binding will, although that would be evidence that would support a challenge to the will.

In fact, the law doesn’t even say that someone who executes a will needs to even understand what’s going on generally in their lives, or that they need to have some baseline level of cognitive ability–they just have to understand what the will itself is, what it’s doing, and what’s happening to the property being left.

You could, hypothetically, have someone who can’t, because of cognitive decline, handle their finances, or tend to their home–but they did understand fully who was getting what in the will that they executed.

Presumption of Capacity

Making it more difficult, the presumption is that people are mentally capable of making their will, and understanding what they are doing. That means that the burden is on the challenger, to disprove or reverse that. The estate claiming the will was validly executed, needs to prove nothing.

Do you have a challenge to a will in probate court? Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today.