• 14
  • May
    2010

People are living longer than ever. One effect of this longevity is that more people are dying with dementing illnesses like Alzheimer's disease. With more and more elderly people suffering neurological and psychological illnesses, there will very likely be an increase in the number of contested wills.

If you have a family member who is preparing a will or wants to change their will, you may want to consider their ability to understand what they are doing. Here are some signs to look for:

  • Can they respond to open-ended questions? It's one thing to be able to answer "yes" or "no" questions about property or heirs, but can they respond accurately to questions like "Who do you want to receive your assets?" "Who are your next of kin?" Early-stage Alzheimers patients may be friendly and cooperative, but when they have to answer questions that involve recollection, they are unable to provide the necessary information.
  • Are they preparing a deathbed will? A hastily drafted will that differs significantly from prior wills is likely to be challenged. People who are dying often feel extreme dependency, fear of abandonment, and/or denial. These can affect the ability to understand what they are doing.
  • Are they unaware of prior wills? Personality traits generally remain stable throughout a person's life. If they are making changes that are significantly different from previous wills, there is a greater likelihood of a will contest.
  • Do they understand the complexity of the will? People with dementia may be able to understand a simple bequest (all of the estate going to one or two children), but may not understand a will with many beneficiaries and complicated arrangements.

In any of these situations, the testator (the person making the will) may not be legally able to make a will. If they don't understand what they are doing, a court is more likely to disregard a will prepared while the person was "incompetent."

Everyone should be aware of these factors. Bequests in your interests or against your interests could be subject to modification in a will contest.

  • Source: MA Lawyers Weekly "Contested wills: an expert's view on challenges for attorneys" October 15, 2007