As American life expectancies get higher, the number of people with dementia also increases. The CDC estimates that around 5.8 million people in the United States have some form of dementia. Without any medical breakthroughs, this number will likely grow to 60 million people by 2060.
Dementia tends to affect people late in their lives. Notably, a vast majority of people with dementia are over 65. Though it is good to write a will much earlier, having a will is essential at this late age. Unfortunately, dementia can severely affect a victim’s ability to write and testify to the validity of a will. This scenario brings up an important question. Can dementia invalidate a will?
Can Someone with Dementia Make or Change a Will?
Whether someone with dementia can make or change a will depends upon the specific symptoms a person living with dementia has. Some people with mild dementia can still think through and understand complex problems. On the other end of the spectrum, some victims cannot speak or interact with others in any meaningful way.
The ability to think through problems and understand the implications of decisions is central to the validity of a will. A person must be mentally able to understand the several complicated aspects of a will and how they interact to be able to write a valid will. The legal term for this standard is testamentary capacity.
What Is Testamentary Capacity?
Testamentary capacity is a term used to describe an individual’s mental clarity and ability to understand the implications of a will. Tennessee courts use a four-part test to determine if an individual has the testamentary capacity to make or change a will. The four elements are:
- Does the individual know and appreciate the nature and consequences of making or changing the will?
- Does the individual know the nature and extent of their property?
- Does the individual know the relationship between themselves and the will’s beneficiaries?
- Does the individual have the ability to link these three elements together into a coherent estate plan?
The probate courts will presume that a will is valid. This presumption means that anyone challenging the will must show one or more of the elements of testamentary capacity did not exist when the testator executed the final version of the will.
Dementia can affect every element. For example, people with dementia often forget who their children and grandchildren are. In this case, the third element of the testamentary capacity test would not be met. A probate court will deem the will invalid if a challenger can prove one element was not met.
When Can a Will Be Challenged?
Any will can be challenged in probate court. Four common arguments used for contesting a will are:
- The testator did not correctly complete all the requirements of a will,
- The testator lacked the mental capacity to execute a will,
- Someone exerted undue influence on the testator, and
- There was fraud involved in the execution of the will.
Dementia can leave an individual’s will vulnerable to all four of these challenges. A person with dementia might be more susceptible to fraud. People with dementia might also struggle to follow all the proper procedures of writing a will and lack the mental capacity to understand what they are doing. Finally, people living with dementia are often entirely reliant on others. Unscrupulous people could use this reliance to exert undue influence.
Protecting a Will from Challenges
The complications dementia causes when writing or changing a will make it essential to take affirmative steps to protect a will from future challenges. Preventative measures are helpful even if the person with dementia clearly has testamentary capacity.
First, have a medical professional document the testator’s mental capacity on the day the will is executed. This step will help disprove any claims that the testator lacked testamentary capacity.
Second, explain your decisions to family members. If multiple family members know why someone is cut out of the will, for example, they will be better able to defend the will in court.
Third, do not allow anyone who is a beneficiary of the will to be involved in drafting the will. This step will prevent accusations of undue influence.
Fourth, videotape the execution of the will. A video will show you executing the will freely.
Finally, an estate lawyer can help you ensure your will is airtight and can survive any challenges in court.
Batson & Nolan PLC Can Help
If you have questions about writing a will in Tennessee, Batson & Nolan can help. We specialize in providing our clients with the personalized, individual attention of a small firm while providing the same quality of service as big-name firms. Our experienced attorneys have a reputation as ethical and effective legal practitioners. Contact Batson & Nolan today so we can help you formulate a rock-solid estate plan.