When drafting or modifying an estate plan, a person must have testamentary capacity. This generally refers to their ability to understand what they are doing, the legal choices they’re making and the impact of their decisions. They must be of sound mind, intentionally and willfully making these decisions, and not suffering from issues that could impair their reasoning, such as Alzheimer’s disease or dementia.
Generally speaking, adults are presumed to have testamentary capacity. They are considered capable of understanding their choices when writing a will and selecting beneficiaries, and they may choose anyone they want.
However, as people age, questions about testamentary capacity can arise. A declining mental state can lead to will challenges, especially if there are late updates or alterations to an estate plan.
Making changes early
If there are questions about mental capacity when someone updates their will or drafts an estate plan, beneficiaries may question whether the document truly reflects that person’s wishes.
For example, a person may update their will and disinherit a beneficiary who was previously included. That individual, along with other beneficiaries, may then wonder whether the elderly person truly intended to leave them out of the estate plan – or whether cognitive decline or forgetfulness played a role. It may be unclear whether the omission was intentional or accidental.
Because of this, it is often best for people to make changes as early as possible, when there are no questions about their mental state or their true intentions. Taking these legal steps at the appropriate time can help avoid conflict and provide clear guidance for family members.
