An estate plan might consist of a will or a collection of multiple different documents that describe what should happen after someone dies or when they experience a debilitating medical emergency. Oftentimes, families pay close attention to estate planning documents and do their best to follow someone’s wishes as closely as possible.
However, sometimes family members question estate planning paperwork. They believe that there is something wrong with the documents due to their understanding of the decedent’s wishes or their health later in life. Families can contest or challenge estate planning paperwork in a handful of different scenarios. Claims that the testator lacked capacity could lead to probate litigation.
When is it reasonable for family members to question someone’s capability of drafting valid paperwork?
When someone experienced marked cognitive decline
There is a presumption in most cases that adults who are 18 years of age or older have the intellectual and cognitive ability to create legal paperwork. Once someone becomes a lawful adult, they can draft a will, powers of attorney or advance directives. They have the testamentary capacity to create legally enforceable documents.
If someone waits too long to draft documents, there could then be questions about their testamentary capacity. Those who put documents together after their diagnosis of a debilitating condition like Alzheimer’s disease may do themselves and their loved ones a disservice. Their estate may end up embroiled in conflict, in the courts may set aside the documents that they drafted later in life.
Generally speaking, family members seeking to challenge a will or similar paperwork due to the belief that a testator lacked capacity need proof of someone’s impaired cognitive function. Medical records and testimony from professionals could help. So could statements from neighbors and family members who can attest that someone lacked an understanding of their circumstances.
Testamentary capacity usually requires that someone know what assets they have, who is in their family and how the documents may affect those people. Someone who can no longer remember what property they own or who might inherit from their estate may no longer be in a position to create or update estate planning documents.
Family members who are concerned about potentially invalid documents after someone’s passing may need assistance as they prepare for probate litigation. Understanding when paperwork may not be valid could benefit those with an interest in an estate.