When contesting a will due to Alzheimers or Dementia, you will need to have your attorney file objections to probate of the will. Objections is a document that states that the person who died suffered from severe Alzheimers or Dementia and asks the court to reject the will.
Your attorney will file the objections with the court. This filing will set your will contest in motion.
As an example, here is a front page of a set of objections we’ve filed for one of our clients:
When contesting a will due to Alzheimers or dementia, is the diagnosis enough to win? The answer would depend on the extent to which the disease has progressed and if other will contest factors are present, such as fraud, duress and undue influence.
An Alzheimer’s or dementia diagnosis in and of itself does not necessarily win a will contest. Having cognitive issues in and of itself does not bar someone from signing a will as long as they have testamentary capacity at the time that they execute the will. This would be the case even in matters where the person who made the will was under guardianship at the time of executing the will.
New York law states that in order to have testamentary capacity, there must be three things met:
1. the person who signed the will must understand that he or she is signing a will and what a will is,
2. the person who signed the will must have at least a general idea of what their estate entails, and
3. the person who signed the will must know who the “objects of his or her bounty” are, otherwise known as his or her heirs.
A person would be considered to be capable of signing a will if they had Alzheimer’s or dementia only when all of those three things were met at the time of the will being executed.
When it comes to signing wills when the person who signed the will has Alzheimer’s or dementia, sometimes the validity of the will depends on whether or not the person who signed the will was having a lucid day on that particular day. If the will was drafted defensively, then the attorney who drafted the will may have adequate documentation, such as a mental evaluation by a doctor and video evidence, showing that the person who signed the will had the testamentary capacity on the day that he or she signed. Most wills, however, are not drafted defensively and mental capacity would have to be determined by witness accounts and medical records. This gives an opening for contesting a will.
What must also be considered is whether someone with Alzheimer’s or dementia may have been the subject of fraud, coercion or undue influence when he or she signed the will. Even someone who has the capacity to sign a will on their own may not have enough capacity to withstand persuasion. Because of that, there are cases where a will contest would be justified even if the person who made the will would have had capacity independently. You can read more about will contests on our website.
If your relative died recently and had Alzheimer’s or dementia and you are considering contesting their will, call estate attorney Albert Goodwin, Esq. at 718-509-9774 and schedule a consultation.