To create a legally valid estate plan, the testator, meaning the person who created the estate plan, must possess the appropriate mental capacity at the time that the estate plan’s documents’ execution. This can become a contested issue when the testator suffers from Alzheimer’s or dementia.
But simply being diagnosed with one of these conditions doesn’t preclude someone from creating a legally valid estate plan. Key in one of these cases, then, is whether the testator possessed mental clarity at the time in question. But how can that issue be addressed?
How to build evidence of testamentary capacity
Alzheimer’s and dementia can raise concerns about testamentary capacity. But by doing the following, you or your loved one might be able to build a strong record of mental clarity and capacity that can defeat any challenge to the validity of the estate:
- Obtaining a medical professional’s opinion on mental capacity shortly before execution of estate planning documentation.
- Having several witnesses present at the creation and execution of estate planning documentation who can later testify about the testator’s mental clarity.
- Gifting assets to someone expected to challenge the estate, as their acceptance of the gift is an acknowledgement of appropriate mental capacity.
If you have other ideas for how to show mental capacity, don’t be afraid to utilize it. The stronger record you can build the better.
Are you worried about testamentary capacity issues?
If the answer is yes, then now might be a great time to consider the legal options available to you. It’s never too early to act but engaging in the estate planning process too late can raise several risks. So, don’t delay in addressing the issues that may have implications for you and your estate.
