Contesting A Will Where The Decedent Was Suffering From Dementia

After someone dies, survivors could have several grounds to initiate a Will contest. One of the grounds for contesting a Will in California is “lack of testamentary capacity.” If you recently lost a loved one who was suffering from dementia, you may be wondering if you can contest their Will and claim that they lacked testamentary capacity at the time of the making of the Will. So, can you contest your deceased loved one’s Will and argue that they lacked testamentary capacity when they made the Will? Yes, you can. However, you should know that just because your loved one had dementia does not automatically mean they lacked testamentary capacity when they made the Will. Whether you can use your deceased loved one’s dementia to invalidate the Will may depend on several factors, including the severity and nature of their dementia symptoms when they made the Will.

Can a Will Be Considered Valid if the Testator Had Dementia at the Time of the Writing of the Will?

Yes, a Will can be considered valid even if the testator had dementia at the time of the writing of the Will. According to California Probate Code section 6100.5, a decedent is deemed to have had the testamentary capacity to create a Will unless either of the following is true;

• They did not have sufficient mental capacity to understand they were making a Will
• They did not have sufficient mental capacity to understand the nature and extent of their property
• They did not have sufficient mental capacity to understand their relations to their spouse, living descendants, parents, and those whose interests are affected by the Will
• They suffered from a disorder with symptoms including hallucinations or delusions, which affected the way they conceived property

As long as the decedent had a basic understanding of the ideas mentioned above and was not experiencing hallucinations or delusions, which affected how they perceived property, they had the testamentary capacity to make a Will. Chances are, if your loved one’s dementia was in its early stages at the time they made the Will, they had the mental capacity to make a Will. On the other hand, if your loved one’s dementia had progressed, it is possible that they lacked testamentary capacity at the time they made their Will.

How Can You Prove Lack of Testamentary Capacity?

Legally, the court is only concerned about whether the decedent had testamentary capacity when they made the Will. Later incapacity cannot affect a Will’s validity. In other words, if your deceased loved one lost testamentary capacity after making their Will, it cannot be deemed invalid.

To prove a lack of testamentary capacity, you need to pinpoint your loved one’s condition at the time they made the Will. Medical records can play a crucial role in proving lack of testamentary capacity. A medical expert can prepare a report based on your loved one’s medical records and statements about your loved one’s condition when they were making the Will.

Contact the Probate Guy for Legal Help

If you lost a loved one who had dementia and you are considering contesting their Will on the ground that they lacked testamentary capacity at the time of the making of the Will, you should consult an attorney.

Contact the dedicated California probate attorney, Robert L. Cohen – The Probate Guy – today to schedule a telephonic consultation.

Southern California Probate Lawyer Serving Orange, Riverside, Anaheim, Whittier & Beyond.

Source:

leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=6100.5