Contesting a Will Due to Dementia

Wills and Dementia and Can You Still Sign

A will is a handwritten legal document signed by the deceased with instructions on how their property will be divided amongst the heirs. On the other hand, dementia is a symptom that affects a person’s long-term memory. In advanced stages, the condition can also affect their mental capacity to understand the current.

Because dementia affects the aged, it is possible to have an impact on the person’s final will. However, the situation has “good” and “bad” days. It is not unusual for the person to be better in the morning and worse in the afternoon. It makes it hard for lawyers to find out whether the person has the potential to write a will.

Under the probate code 6100.5 in California, a person is not allowed to make a will if they do not have sufficient mental capacity or mentally competency to understand the following:

· The value and nature of their property

· The Will they are making

· Their living spouse, descendants, or relatives that will be affected by the will

Typically, the will is declared valid if the deceased was in the right mind to understand all the above factors when writing the will. Later incapacity does not affect the validity of the will.

Best Evidence to Contest a Will

Here are some of the best evidence you can check with a lawyer to help you contest a loved one’s will in probate court:

Medical Records

Medical records are perhaps one of the most obvious places to start looking for signs of dementia. Check the medical records thoroughly to help you determine when the deceased was first diagnosed with dementia. Look for references when they appeared confused and whether they had conducted a mental state examination (MMSE test).

Technically, the test examines areas of the brain affecting visual-spatial awareness, recall, and orientation based on questions from the present and past. It also examines the person’s ability to retain, communicate, or weigh information from a specific question.

Normal cognition scores range from 27 to more, and 19 to 24 is a mild cognitive impairment. Scores below 18 indicate the person was suffering from dementia, with less than nine considered severe.

Files from the Deceased’s Lawyer

The deceased was required to contact their attorney before drafting the will. Therefore, you should find copies of the lawyer’s original will and other files. Look for signs of incompetence when writing the will to help you identify issues relating to capacity.

It is also imperative to ask the lawyer if the will was witnessed by a medical expert and a copy of the files indicating that the deceased had the right mental capacity. Even if the step was not taken, it is not certified proof that the will is invalid.

Witness Accounts

It is required for a parent suffering from dementia to have witnesses to prove that they had the capacity when signing the will. Besides, there should be witness accounts from several individuals. It will help provide the fact, especially in cases where witnesses claim different accounts and dates. They should be family and friends who have nothing to gain from the case.

Can a Person with Dementia Contest a Will?

Yes, people with dementia can contest wills. However, according to the Code of Civil Procedure 372 in California, adults who lack the legal capacity to make decisions must appear in court with a guardian ad litem or conservators as a personal representative. As long as they have the legal capacity to contest the will of the deceased, they have all the right to be present in court.

Conservatorship: What is it

Conservators are appointed through a process known as conservatorship. It is a legal process conducted in court where a responsible person is appointed as a conservator to care for the individual’s personal needs.

On the other hand, a guardian ad litem is an attorney appointed by the court to represent an individual medically proven to have mental incapacity in a will contest. Whether or not a conservator represents the person, a guardian ad litem can be appointed if the judge finds it to be a necessary step in the case.

How Can an Estate Planning Attorney Help?

One of the best ways to guarantee the success of your real estate planning is to integrate the services of an experienced estate planning attorney. These professionals can provide the proper guidance to individuals diagnosed with Alzheimer’s or dementia. They can take suitable precautions to ensure the will is not challenged in court.

Besides, having an estate planning attorney to represent the deceased can make the probate process easier by putting the estate in the best position to defend the case. They can provide proof with video footage, medical documentation, and other evidence.

Contact Us to Hire an Attorney Today!

Contesting a will in court can be daunting, especially if the deceased suffered from dementia or Alzheimer’s. The best way to go about the process is to hire the services of an experienced trust litigation attorney. They understand all the aspects required while contesting a will and will ensure you get the best results.

Call or contact our office to schedule a free consultation, and let us ensure your legal issues are handled in the best way possible.