We all know that a person must be of sound mind to make a valid will. But,what does this mean? Can someone with a mental disability make a valid will? How about someone in the early stages of Alzheimer’s disease?
To determine whether someone has capacity to make a will,courts generally apply four criteria of capacity that must be satisfied for a will to be valid:
1. The maker of the will must understand that he or she is making a will,and disposing of his or her assets at death.
2. He or she must understand the nature and extent of his or her assets.
3. He or she must understand and recall those persons who have a claim to his or her assets.
4. He or she must not be under any insane delusions that affect his or her judgment in making the will.
If these criteria are met,the maker of the will has the required mental capacity,even if he or she has a mental disability. Accordingly,it is possible for someone in the early stages of Alzheimer’s disease,or other mentally debilitating diseases,to make a valid will. There have been many cases where the will of a person with some sort of mental disability has been challenged and found to be valid,often because that person’s attorney had taken special care to document and verify the client’s capacity to make the will. Of course,if the Alzheimer’s disease or mental disability has progressed to the point where the sufferer does not recognize family members,or does not know his or her own assets,he or she would be found not to have the capacity to make a valid will.
When someone asks a lawyer to draw a will,it is the lawyer’s duty to take appropriate steps to determine that his or her client has the mental capacity to do so. In most cases,a lawyer does this by asking the client appropriate questions about such things as the client’s family,assets,and reasons for including or not including specific beneficiaries.
Sometimes a lawyer will make a video tape of the client responding to certain questions.
By taking appropriate steps to determine that their clients have the mental capacity to make wills,lawyers reduce the risk of the wills being successfully challenged in court,and,thereby,protect their clients’ wishes.
In addition to these articles,you can listen to Wills,Trusts and More with local Attorney Jeff McKenna on Fox News KZNU 1450. The show airs the first and third Tuesdays of the month from 4:30 to 5:00 pm (Mountain Standard Time) on 1450 AM. It is an opportunity to call in and ask an attorney questions about estate planning matters without getting an invoice sent to you at the end of the conversation.
Jeffery J. McKenna is a local attorney serving clients in Utah,Nevada,and Arizona. He is a shareholder at the law firm of Barney McKenna and Olmstead,with offices in St. George and Mesquite. He is a founding member of the Southern Utah Estate Planning Council.
Very easy to read and most enjoyable. Thanks for your hard work.