A community-based law firm serving businesses and individuals with real estate transactions, corporate law legal needs and planning for the future.

How to avoid an estate challenge based on mental capacity

On Behalf of | May 16, 2024 | Estate Planning |

Ideally, you wouldn’t wait until the last minute to create your estate plan. There are many reasons for this, including giving yourself time to assess your estate planning options fully and ensuring that you have the time needed to create the holistic and cohesive estate plan that you want. But there’s another benefit of estate planning early: decreasing the risk of probate litigation centered on testamentary capacity.

What is testamentary capacity and why does it matter?

Testamentary capacity is your mental ability to understand the nature and extent of your estate, to whom you’re leaving assets, and how those things come together to form an estate plan. If your mental capacity is drawn into question, then someone who feels like they were jilted in your estate plan may take action in probate court to try to invalidate your estate plan. This can be costly to your estate, damaging to familial relationships, and it can result in your assets being distributed in a way that you never intended.

What if you’re already showing signs of decreased cognitive functioning?

Even if your mental capabilities are diminished, you can still create a legally binding estate plan. What’s key is that you’ll want to ensure that you have mental clarity at the time your estate plan is executed. How can you go about doing that? Here are some options that you might be able to utilize to protect yourself from probate litigation:

  • See the doctor shortly before document execution: By going to the doctor prior to the execution of your estate plan execution you may walk away with a medical opinion regarding your mental capacity. If that opinion shows that you think clearly and can understand facts and conversations, then you’ll be in a better position to block any attack to the viability of your estate as it pertains to testamentary capacity.
  • Have plenty of witnesses: The execution of estate plan documentation has to be witnessed. The more witnesses you have who can testify to your mental clarity at the time, the better. So, make sure you’re surrounding yourself with people who can make those observations.
  • Give gifts: You might already have an idea about which of those individuals closest to you is likely to challenge your estate plan. If you do, then you might want to consider giving that individual a gift. Their acceptance of it would constitute an acknowledgement that you have the requisite mental capacity to dispose of your assets as you see fit.
  • Don’t procrastinate: As mentioned above, the longer you wait the more you expose yourself and your estate to risk. So, try to create your estate plan as soon as you can even if you’re experiencing mental decline.
  • Be thorough: While you’ll want your estate plan to clearly specify how your assets are to be distributed, you shouldn’t overlook the value and importance of a healthcare directive and a power of attorney. That way, if you do become incapacitated, someone you trust can make important decisions on your behalf, perhaps including how your assets will be utilized.

How you lay out your estate plan can have a tremendous impact on your loved ones and those causes you care about. You don’t want your vision of the future to be compromised by inadequate planning. So, now is the time to consider your estate planning options and how to protect your estate plan from legal challenges. If that’s something that you need assistance with, then please discuss the matter with your attorney.