More and more elderly individuals are receiving diagnoses of Alzheimer’s Disease and dementia. Though a majority of these individuals may already have an estate plan in place, an individual could decide to make changes after a diagnosis occurs.
The specifics of a case will determine whether or not changes to a will can take place, but in general, a diagnosis does not make an existing will invalid nor will it make any changes invalid.
Mental competence
Creating a will requires the individual to have the mental capacity to put forth their instructions. When changing a will, the individual must maintain testamentary capacity. A declaration of competence is upheld when the following statements are true
- The testator fully understands the extent and nature of his or her personal property
- The testator is cognizant of the heirs and inheritance divisions currently in the will
- The testator recognizes and articulated the purpose of a will and disposal of estate property
- The testator understands the interconnected nature of all three of these statements
Challenges to mental capacity
A medical professional can establish mental capacity or incapacity for the individual, while legal counsel can also assist with discovering testamentary capacity. There are recommendations to videotape the process of proving the individual’s mental capacity to preemptively avoid challenges to the will on the grounds of this condition.
An individual has the right to change his or her will, provided there are no concerns with mental capacity. The process becomes more complex after receiving a dementia diagnosis, but it is possible.
