Many people do not consider their estate planning needs until later in life. Unfortunately, Alzheimer's disease, dementia and a greater susceptibility to abuse and exploitation can become factors when creating or modifying an estate plan for mature individuals. Estate planning after a mental health diagnosis is not impossible, but certain considerations must be taken into account when creating a will or trust in order to ensure that an aging person's wishes are respected.
A will must go through probate before the estate is settled. During probate, the court determines if the will was properly executed and that the person making the will was mentally competent to do so at the time the will was made. Beneficiaries and potential heirs in the will may contest the will in order to void certain provisions or render the document invalid. If the court finds that the will was created without mental capacity or with undue influence, the estate will be distributed according to state law, not the will or trust provisions.
The majority of estates go through an informal probate, which takes less time and money than a formal probate proceeding. Formal probate occurs when there is a dispute over the will or trust. The most common dispute claims to a will or trust are capacity and undue influence.
Certain estate planning techniques can also eliminate or reduce probate proceedings. However, such legal planning involving irrevocable trusts, for example, must also be able to survive contestations of mental capacity and undue influence.
Capacity is significant for a person suffering from a mental illness. If a will is contested, the proponent of the will (meaning the person who wishes the will to be valid) must show that:
- The testator understood the nature of and consequences of executing a will.
- The testator knew the nature and extent of the property subject to the will.
- The testator knew his or her descendants and his or her relationship to them.
Importantly, simply because the testator is old, ill, or suffering from mental illness (such as dementia or Alzheimer's) is not enough by itself to make a will invalid. Evidence from witnesses, the attorney executing the will, medical records or a video recording can show that the testator had the capacity to execute a valid will.
A related challenge to a will can be that someone exercised undue influence on the testator. This means that another individual (usually a beneficiary of the will) coerced the testator to draft the will in a certain way. To prove undue influence, the challenger must show "undue influence" that "destroyed free agency" and forced the testator to do something against his or her wishes in such a way that was "tantamount to force or fear." It may be easier to explain what undue influence is not: things like affection (familial or otherwise), wishing to please another, or gratitude for previous kind acts.
A properly created estate plan can reduce the likelihood an estate plan will be contested. desires are given force after the end of your life. The first step is to consult an experienced attorney in estate planning matters.