Can a Person with Schizophrenia Make a Will?

Schizophrenia is a terrible disease affecting roughly one percent of the U.S. population.[1] Characterized as a serious mental illness, its symptoms include hallucinations and delusions.[2] While there is no cure for schizophrenia, it could be treated through antipsychotic medications and psychotherapy.[3] In many cases, those suffering from this disease could live “a productive and normal life.”[4] Needless to say, the disease takes a toll on the individual and their loved ones. Schizophrenia and other mental diseases also present additional end-of-life challenges in areas such as conservatorship and estate planning. This article will answer the question: Would a New York court accept a will into probate when it is executed by someone suffering from schizophrenia? The answer will depend on multiple factors—with those suffering from mental illness needing to take extra care to ensure proper documentation.

When executing a will, New York and most other jurisdictions require a testator to possess a “sound mind and memory.”[5] To clarify this crucial point: the person making the will must have testamentary capacity at the time of the execution of the will. That means that a person suffering from a mental disease like schizophrenia[6] could be considered of sound mind as long as they are lucid at that point in time.[7] New York courts long recognized that mental illness like schizophrenia and “senile dementia are not necessarily inconsistent with testamentary capacity.”[8] Because a known mental illness is a very common challenge to the validity of a will, such possibility must be anticipated for during the will’s execution and appropriate steps must be taken by the estate attorney who is drafting the will to document the capacity of the testator.

In determining whether a person was of sound mind when executing a will, New York courts focus on three elements. Whether the testator: (1) understood the nature of consequences of executing a will; (2) understood which property was being disposed; and (3) knew the natural objects of his or her bounty and his or her relations with them—that is, the testator understands and consciously decides to remove certain family members (e.g., a child) from his or her will.[9] These are of course reasonable requirements. Unfortunately, with the various predatory schemes and in attempt to prevent fraudulent and unethical behavior, (visualize a person on their deathbed while some greedy relative forces a pen to the moribund person’s hand), NY courts place the burden of proof of testamentary capacity onto the executor or a proponent of the will.[10] In other words: without adequate proof, the decedent is presumed to have been mentally incapacitated and the will, invalid. This fact makes it crucial for a person suffering from a mental health issue to hire a competent attorney for their will drafting and execution.

A competent trust and estates attorney discusses the end-of-life options with the client and drafts a will tailored to the client’s needs. In fact, it is the attorney’s ethical duty to ensure that the testator is of sound mind during the execution of the will. During contention of the will, attorneys are often called to testify to the testator’s mental state in understanding the will. This is why when possible, the attorney drafting the will should preferably be the attorney witnessing its execution. Next, a good attorney will craft a self-proving affidavit for the two witnesses.[11] The affidavit will attest to the lucidity of the testator and create a presumption of testamentary capacity—thereby switching the burden of proof to the party challenging the will.[12] Together with the attorney’s testimony, the witness’ affidavit and testimony provide can help defend a will from a challenge on the grounds of mental incapacity. Since there is no such thing as too much evidence, many attorneys implement additional steps, such as rigorous note-keeping. A few will even go as far as video recording the testator reviewing and executing the will.[13]

People who live their life with schizophrenia face unpredictable challenges. These challenges carry over to their death, as a person suffering from schizophrenia is presumed to have had a mental illness during the execution of their will. Fortunately, this challenge is indeed predictable. A competent lawyer can take steps to minimize the chance that schizophrenia turns into a successful probate dispute. After all, like a person who was fortunate not to experience mental illness, a person suffering from schizophrenia is no less entitled to have his or her wishes followed as long as they actually have the capacity to make the will.

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to your will contest.

[1] Schizophrenia, NAMI, (last visited Sep 16, 2018).

[2] Id.

[3] Id.

[4] Living With: Schizophrenia, PsychGuides, (last visited Sep 16, 2018).

[5] N.Y. Est. Powers & Trusts Law § 3-1.1 (McKinney 2018).

[6] NY courts do not treat schizophrenia legally any different than any other mental disease such as Alzheimer’s or dementia. See In re Grinker, 77 N.Y.2d 703, 712 (1991) (reversing lower court’s judgment for an appointed conservator to forcibly commit a person to a nursing home, finding that the lower court erroneously held that the schizophrenic conservatee was substantially unable to manage her property).

[7] See e.g., In re Estate of Makitra, 956 N.Y.S.2d 780 (2012).

[8] In re Hedges, 473 N.Y.S.2d 529, 531 (1984).

[9] In re Estate of Kumstar, 66 N.Y.2d 691, 692 (1985).

[10] In re Estate of Walker,2 N.Y.S.3d 628, 630 (N.Y. App. Div. 2015).

[11] N.Y. Surr. Ct. Proc. Act Law § 1404, 1406 (McKinney 2018).

[12] In re Estate of Walker, 914 N.Y.S.2d 379, 381 (2011), leave dismissed, 16 N.Y.3d 711 (N.Y. App. Div. 2011).

[13]See, e.g., In re Estate of Makitra, 956 N.Y.S.2d 780, 782 (2012).

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001

Tel. 212-233-1233

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