One of the first issues that frequently accompanies the discovery of a new will, or a will with unanticipated provisions, is whether the testator had the mental
capacity to create the document.
The Mental Competence of a Family Member When the Will was Made May be Contested
The capacity of a individual testator to make create a will can in some cases be notably impacted by cognitive impairments. Mental illnesses like dementia, Alzheimer’s disease, or other similar conditions can compromise an individual’s ability to comprehend and make knowledgeable choices regarding their estate.
Litigation involving the capacity of a testator to create the will commonly involve some or all of the following issues.
Did the Testator Understand the Nature and Extent of the Assets Disposed of By the Will?
When a testator has cognitive impairments, comprehending the value, nature, and extent of their assets are often difficult. This may result in a lack of understanding of their investments, property, debts, and other financial matters.
The capacity to make knowledgeable choices about how to allocate their property in the estate created by a will may be hindered as a result. The standard under New Jersey law requires only “a low degree of mental capacity.”
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Nonetheless, the testator must understand that his or her property has value and a general estimate of the nature of the estate, as opposed to simply being mistaken about the value. When the ignorance of the these essential facts is due to mental incapacity, as opposed to simple ignorance not related to an incapacity, the validity of the will may be at issue.
Did the Testator Understand Who are the Beneficiaries of the Will?
When creating a will, it is important to acknowledge the possibility of cognitive impairments that could affect the testator’s ability to identify and remember beneficiaries. These impairments may cause difficulty in recalling names, the family relationships, or even the existence of certain individuals who could potentially be beneficiaries of the estate.
The inability to know or remember who receives gifts under a will must be distinguished from unequal distributions of the assets of the estate or intentional omissions of individuals from the will.
For example, New Jersey law does not require a testator to equally divide his or her estate among children. The testator may be arbitrary, vindictive or simply unfair. The failure of a will, however, to provide for the “natural objects of the testator’s bounty” can create a suspicion of lack of capacity of undue influence.
Did the Testator Understand the Financial Consequences of the Gifts in the Will?
An individual with mental incapacity may struggle to grasp the consequences of specific bequests, tax implications, or how their distribution choices impact their loved ones as a whole.
The resulting decisions in the will may not align with the testator’s intentions or expectations. Individuals with cognitive impairments who are preparing their wills may face difficulties in recognizing the importance of seeking professional advice.
A cognitive impairment may make it no feasible for the testator to have understood the advice received from by attorneys, financial advisors, or accountants. As a result, their ability to make informed decisions based on expert recommendations may be hindered, impeding their capacity to acquire suitable assistance.
Did Mental Capacity Make the Testator Vulnerable to Undue Influence?
An individual with physical or mental impairments is more likely to be vulnerable to being unduly influenced or manipulated by others. The existence of a mental incapacity can make someone them more susceptible to being coerced or swayed into making decisions that do not align with their true intentions or best interests
Undue influence is an influence that overcomes the testator’s intention and will. When undue influence was present when a will was made, the resulting will may challenged.
Mental Abilities May Vary Over Time
Our decision-making abilities change and may fluctuate as a result of cognitive impairments. The result may be inconsistent mental processes that are difficult to assess. Mental impairments can produce a series of periods in which a testator may display sensible thinking, followed by confusion or disorientation.
The inconsistency of these periods can make assessing a testator’s mental capacity more difficult and can create problems when it comes to deciding when to conduct the capacity assessments.