How to Contest a Will Due to Alzheimer's

By Beverly Bird

An objection that a decedent was suffering from Alzheimer’s disease and was mentally incompetent when she made her will is one of the most difficult contests to win. One issue that arises is that the disease is progressive, so simply proving a diagnosis is not enough. You will have to determine your loved one’s mental capacity at the time she signed and dated the will, and you have to prove that she had no cognitive understanding of what she was doing at that moment in time.

An objection that a decedent was suffering from Alzheimer’s disease and was mentally incompetent when she made her will is one of the most difficult contests to win. One issue that arises is that the disease is progressive, so simply proving a diagnosis is not enough. You will have to determine your loved one’s mental capacity at the time she signed and dated the will, and you have to prove that she had no cognitive understanding of what she was doing at that moment in time.

Step 1

File an objection to the will with the probate court immediately. The window of time during which a state will accept petitions to contest may be as short as 90 days from the date the will is entered into probate, so check with the court immediately after the decedent passes away to find out how much time you have. If you think there might be a problem with the will, file the objection. Don’t wait to learn the contents. You can always withdraw your petition later if the will is OK.

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Step 2

Gather proof of your loved one’s mental condition at the time she made her will. This process can entail a great deal of work in a short period of time. You will need to get statements from friends and family members as to the degeneration of the deceased’s mind at the time. You will need access to her medical records. You might have to retain the help of an expert, such as a neurologist or psychiatrist, to interpret those records and eventually testify to his opinion. Try to find any writings by your loved one or photographs or videos showing her irrational mental state at that time.

Step 3

Hire an attorney. You must appear in court to present your evidence to a judge, and ultimately you have the burden of proof to convince the court that Alzheimer’s affected your loved one’s understanding of what he was doing at a specific moment in time. This process is best left to someone with professional experience in such matters. The law in most states presumes the decedent was mentally sound without definitive proof otherwise.

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How to Contest a Will in the State of New Jersey

References

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You may contest a will if you're an interested party, such as an heir or beneficiary of the deceased person, known as the decedent, and believe the decedent didn't have the mental capacity necessary to write a will. You must prove the decedent didn't meet the mental capacity standard at the time he wrote the will. The mental capacity required to make a will is much lower than the legal standard for other acts, such as making a contract. The will maker, or testator, must know who he is, have a general understanding of the assets he owns and understand the relationship between himself and likely beneficiaries of his estate, such as his spouse and children.

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