If you have an aging parent who shows any signs of cognitive impairment, you should be attentive to the issue of capacity when your parent makes or changes a will. The caution applies especially if there is a family member who might contest the provisions of a will that your parent wishes to make.
You and your parent can take precautions to avoid — or, if necessary, to defend against — a potential court challenge based on lack of capacity. The first step is understanding what “sufficient mental capacity” means in the context of making a will.
The Michigan statute that establishes the mental capacity requirement for a will is in Section 700.2501 of the Estates and Protected Individuals Code (EPIC). That section sets out four clear requirements, all of which must be met to establish sufficient mental capacity to make a will. The law provides that the person who makes the will must:
Under this provision, the individual must have the “ability to understand that he or she is providing for disposition of his or her property after death.” This requirement relates to understanding the overall effect of executing the document.
The individual must have the “ability to know the nature and extent of his or her property.” To be able to dispose of property in a will, the person must be able to understand reasonably well what property and assets he or she owns and is giving to the beneficiaries.
The individual must know “the natural objects of his or her bounty.” This provision requires that the person understand who would normally inherit from them — typically their family. This requirement is particularly important if a family member is excluded from the will, or if property is left to someone other than family members who would normally inherit it.
The person who executes the will must have the “ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will.” Generally, the individual must be able to understand that he or she is signing a legal document to give the identified property to the named beneficiaries after death.
Michigan court decisions establish long-standing precedent that applies to determining whether an individual has the capacity to execute a will. Under those decisions, the required mental capacity exists if the four statutory criteria are met at the time the will is executed.
Even if an individual may experience some cognitive impairment, mental capacity for purposes of making a will exists as long as the person has the requisite ability, understanding, and knowledge when they execute the will. If lack of capacity is asserted in a challenge to a will, the court examines the circumstances surrounding the making of the will to determine capacity.
In addition, the person who signs a will is presumed to have the necessary capacity to execute the document. The burden is on a person challenging a will on the basis of lack of capacity to disprove the presumption of capacity.
The strategy for protecting your aging parent’s wishes and ensuring mental capacity for making a will takes all these legal principles and the statutory requirements for capacity into account. An estate planning lawyer is best-positioned to help you carry out that strategy.
Under any circumstances, the best way to ensure the validity of a will is to consult with an experienced estate planning attorney. If your aging parent has any cognitive impairment — and particularly if a family member may challenge a new or amended will — it is especially imperative to have your parent talk with a knowledgeable lawyer before executing any documents. Just because someone is diagnosed with dementia does not automatically mean that person lacks legal capacity to execute a will.
An estate planning lawyer takes specific steps and precautions to document the legal capacity of an individual who executes a will. If there eventually is a challenge to your parent’s capacity to sign the document, the attorney will be fully prepared to provide evidence to substantiate that the legal requirements were met. In contrast, using DIY (do-it-yourself) services or forms and foregoing a consultation with a lawyer can make your parent’s will vulnerable to an eventual challenge.
If you are the personal representative of your parent’s estate, and someone threatens or files a challenge to your parent’s will based on lack of testamentary capacity, you should immediately talk with a Michigan probate litigation attorney. A lawyer experienced in will contests understands the relevant statutory provisions and legal principles and knows how to gather and present the necessary evidence to defend against a lack of capacity claim.
If an issue arises relating to mental capacity or any other matter relating to a challenge to a will or trust, our probate litigation attorneys are fully prepared to defend against the claim. To avoid those types of situations, clients count on our estate planning attorneys to make sure their estate wishes will be carried out completely. We welcome elder clients, including those who are concerned about ensuring the validity of estate plan documents.
From our office in Troy, we serve clients in southeastern Michigan and throughout the state. We also work with out-of-state residents with an interest in a Michigan estate or trust. Call us at (248) 494-4577 or complete our online form to set up your free initial consultation.