How Does Mental Decline Affect a Last Will and Testament?

Law Blog

As you watch a loved one getting older, you may begin to notice signs of mental decline. This can be very galling for you and other members of the family. Often, this condition can develop rather slowly, and you may take a 'watch and wait' stance, somewhat reluctant to act because you fear the ultimate consequence. However, time marches by, and there is still no real cure for a disease such as this. Of course, you have to make sure that you provide for them, especially as they may not realise that they have an issue within themselves, but you may also have to deal with another challenge, and that is their last will and testament. If they've only created this document in fairly recent times, is it going to be valid in these circumstances, and what do you need to consider?

Legal Position

It's a good idea for everybody to create a will, of course, so they can leave their possessions to whomever they want and make arrangements to tidy up their affairs after they have gone. The law provides plenty of support for them as they do so, in a process known as 'freedom of testamentary disposition'. However, if their mental capacity was severely affected during the time that they actually created the document, it is going to be legally binding thereafter?

Grounds for a Challenge

People do challenge the content of a will for a variety of different reasons, especially if they feel left out or overlooked. If a challenge is mounted by someone who is working for themselves and doesn't really care about anybody else, they may certainly question this document due to declining mental capacity.

Professional Opinion

The only answer at such a time is to bring in a senior doctor who has experience in this area to look closely at the details of the case. Ultimately, they will need to decide based on their experience and judgement whether your loved one had the proper testamentary capacity when they signed the document.

Aware of What's Going On

Much will depend on the progression of the disease and whether they were aware of the nature of the document. Where they familiar with the people named and able to identify family members or understand the true value of the property in question?

Alternate Version?

In an ideal world, your loved one may have an older will that was made before the process of decline started to accelerate. If this is the case, the doctor may suggest that this takes precedence and that the later document be discarded. Unfortunately, if no such paperwork exists, then a judge may classify this situation as intestate and it may take a lot longer to sort out all the details.

Earlier Action Required

The moral is clear in this case, unfortunately. Family members need to take action as soon as possible rather than wait and should persuade the individual to create their last will and testament earlier rather than later. Contact a wills and estate lawyer to learn more.

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24 October 2018