I have Dementia. Can I Write/Change My Will?

I have Dementia. Can I Write/Change My Will?

With humans living longer than previous generations comes the inevitable downside of sickness and disease. Those who have been diagnosed with Dementia know the devastating toll this disease can take on the body and mind. Whether you have an end-of-life plan in place that you’d like to alter or you simply want to get started, you may find yourself asking whether or not your dementia affects your ability to create or change a will. 

In these cases, it’s best to talk to an attorney who can help you protect your will from heirs contesting your will and claiming a lack of competency. 

 

Can a Dementia Diagnosis Prevent Me from Writing/Changing My Will?

The good (and bad) news is that a diagnosis of Alzheimer’s or dementia doesn’t automatically mean that you cannot create or change a will. Whether or not you can is determined case by case. Your circumstances and symptoms may be more or less severe than others, which can affect your ability. Your testamentary capacity will determine your legal ability to create or amend a will. 

Testamentary capacity is defined by Cornell Law School as “the ability of a person to make a valid will”. Testamentary capacity states that in order for a will to be valid the testator must be of legal age (over 18 in most states) and pass the mental capacity which requires that:

  • The testator understands the extent of their estate
  • The testators knows who their heirs are and can determine how they should inherit
  • The testator knows and understands the disposition (the transfer or sale of property) their will is making, and
  • The testator understand the connection between these three points and the ability to connect them together to create an estate plan

If you have met all the requirements for testamentary capacity, you legally won’t have any issues creating or amending your will. Things get more complicated if you fail to display some or all of the requirements for proving testamentary capacity. In both cases, taking steps to protect your will from dispute from heirs is important for keeping the process of estate distribution streamline. 

 

Protecting Your Will from Disputes

If you have an Alzheimer’s or dementia diagnosis your estate may be disputed by heirs claiming a lack of testamentary capacity, even if you have proven you did indeed have capacity at the time of creation or amendment. 

For example, if you decide to make a change to your will now about who receives certain property after your passing, another heir may try to bring your testamentary capacity into question if they were the original beneficiary or if they want that property for themselves. 

In order to protect from these disputes, there are several steps that can be taken. 

  • Witnesses. Like many legal proceedings, having two witnesses with no stake in the will can also go far in proving capacity. 
  • Medical documentation. It’s wise to seek medical documentation of your mental capacity prior to creating or making any changes to your will. This documentation can be used as evidence during probate to show that you were, in fact, capable of making the decisions and changes you did. 

Above all, seeking counsel from an attorney is the best way to ensure that your final wishes are protected and honored after your passing. If you have a diagnosis of dementia or Alzheimer’s, contact an attorney


Published 04/07/2022.