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.
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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.
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.
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.
Tips & Warnings
- If a loved one is diagnosed with Alzheimer’s, begin documenting the course of her behavior immediately. If she ultimately leaves a will that you want to contest, you can check the date of the will against your records and you will have some proof of her mental condition at that time.
- Even if you can prove that your loved one was mentally incapacitated by Alzheimer’s disease at the time he made his will, it might not be enough. He need only understand what he owns and who he is giving it to when he makes his will. He does not need to be able to manage all of his own affairs. According to the American Psychological Association, he must experience only one “lucid interval” at the moment he signs his will for a court to uphold it.
References & Resources
- Free Advice: What Are the Time Limits for Contesting a Will?
- Downey Brand Attorneys LLP: The Rising Tide of Will and Trust Contests
- Clark Skatoff PA: Florida Will Contests Frequently Asked Questions
- University of Oklahoma College of Law: What Every Oklahoma Elder Lawyer Should Know About Testamentary Capacity
- American Psychological Association: Assessment of Older Adults With Diminished Capacity