Estate litigation lawyers can help many potential clients with different issues regarding an estate dispute. One of the most common reasons for a dispute to occur is lack of mental capacity. Many people assume that when a will contains no contest clauses, it cannot be disputed. However, experienced estate litigation lawyers will disagree. They know of many cases in which many no contest clauses existed in a will; however, because the signer lacked mental capacity, the will was disputed.
Under the law, any creator of an estate should be of a sound mind, or in other words, is mentally capable of doing so. However, there are varying degrees of mental capacity depending on the type of document being drafted. This might lead some to wonder, what the definition of a sound mind is, and “how much” is needed to legally draft a will or estate.
All laws are different in each state; however, there are typically similarities. In general, when a person is signing a will, they will not have mental capacity if any of the following apply:
- They do not understand the meaning or nature of the testamentary act
- The cannot understand or remember the current situation of his or her property
- The are unable to remember who their living descendants are or fail to understand the relation between them
- They have a mental disorder that causes hallucinations or delusions
What this means is that the person must know what they are signing, what they have, what they are giving away, and who they are giving it to. With regards to the mental disorder, this can be complicated. Just because a person might have a mental disorder or experience hallucinations doesn’t mean they are unable to sign a will. Rather, an estate litigation lawyer would need to demonstrate to the court that even though a person had a mental disorder, they left their estate to people who would have received their assets even if the disorder did not exist.
When it comes to a will, most people meet the requisites for capacity; thus, a lack of mental capacity may be cumbersome and difficult.
Lack of Capacity for a Trust
In many cases, a judge will apply the above standards for will to trusts as well, and as long as the trust does not include any special circumstances. Trusts that have complex strategies will tend to have much higher standards for mental capacity. In some states, the court will consider various factors, including:
- A person’s level of consciousness
- A person’s orientation to time, people, place, and situations
- A person’s ability to recollect, as well as short and long term memory
- A person’s ability to concentrate
- A person’s ability to converse
- A person’s ability to recognize objects or familiar people
- A person’s ability to understand their qualities
- A person’s ability to organize and plan
- A person’s ability to logically reason things
One might come to questions such as: “So, a person diagnosed with dementia cannot draft a trust or an estate plan?” No, this is not true. As an estate planning lawyer might explain to you, as long as the person has the required requisites for capacity at the moment of creating and signing the estate, everything should be okay. As the condition becomes worse over time, proving he or she had a sound mind may be an issue.
Thanks to our friends from Cohen & Cohen for their insight into estate litigation.
