Contesting a Will Due to Alzheimer’s

When contesting a will due to Alzheimer’s, 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 Alzheimer’s 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.

If your relative died recently and had Alzheimer’s and you are considering contesting their will, call estate attorney Albert Goodwin, Esq. at 212-233-1233 and schedule a consultation.

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 Alzheimer’s, 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 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 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, 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 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 and you are considering contesting their will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Queens, NY and Brooklyn, NY. You can call us at 212-233-1233 for a consultation.

The Specific Challenges of Alzheimer's-Based Contests

Alzheimer's disease presents specific challenges in will contest litigation. The disease is progressive, can vary day to day, and affects different cognitive functions to different degrees at different stages. These characteristics make the case fact-intensive.

Variable presentation. A person with Alzheimer's may seem normal in casual conversation while having serious deficits in memory, judgment, and other key functions. The drafting attorney who met with the testator briefly may not have noticed deficits that a longer interaction would have revealed.

Lucid intervals. Alzheimer's patients in moderate stages may have hours or days of relatively clear functioning followed by periods of confusion. Whether the will signing fell within a lucid interval is a key factual question.

Anosognosia. Many Alzheimer's patients are unaware of their cognitive deficits. They may confidently make decisions they cannot actually understand. The fact that the testator seemed certain does not establish that they actually understood.

Susceptibility to influence. Even Alzheimer's patients with retained capacity in some areas may be more susceptible to influence than they would have been before the disease. The intersection of capacity and influence concerns is particularly common in Alzheimer's cases.

Medical Documentation Specific to Alzheimer's

Medical evidence in Alzheimer's contests typically includes:

• Diagnostic documentation. Records showing when Alzheimer's was diagnosed, by whom, and based on what evaluations.
• Cognitive testing results. Mini-Mental State Examination (MMSE), Montreal Cognitive Assessment (MoCA), and similar tests provide objective measures of cognitive function over time. Scores close to the time of will signing are most probative.
• Neurological evaluations. Specialist evaluations by neurologists or geriatric psychiatrists document the specific cognitive deficits and their progression.
• Imaging studies. MRI and PET scans can show brain atrophy and the patterns characteristic of Alzheimer's.
• Medication records. Cholinesterase inhibitors, memantine, antipsychotics for behavioral symptoms — all document the severity and treatment of the disease.
• Care facility records. If the testator was in assisted living or memory care, daily care notes provide rich evidence about daily functioning.

The Sundowning Phenomenon

One Alzheimer's-specific phenomenon worth understanding is sundowning — the tendency for cognitive symptoms to worsen in the late afternoon and evening. A testator who was relatively clear in the morning may be confused or agitated by evening.

This pattern matters in will contest cases:

• The time of day of the will signing is relevant evidence.
• Morning signings (when symptoms are typically milder) are more defensible than evening signings.
• The attorney's notes about the testator's condition at specific times can be important.

Differentiating from Other Dementias

Alzheimer's is one of several types of dementia. Others include vascular dementia, Lewy body dementia, frontotemporal dementia, and mixed dementias. Each has somewhat different cognitive patterns:

• Alzheimer's typically affects memory first, particularly recent memory, with executive function and judgment declining later.
• Vascular dementia may have step-wise decline corresponding to vascular events. The cognitive pattern depends on what brain regions are affected.
• Lewy body dementia often features fluctuating cognition, visual hallucinations, and Parkinsonian symptoms.
• Frontotemporal dementia typically affects behavior, personality, and language before memory.

The type of dementia affects which capacity arguments are strongest. Alzheimer's-specific memory issues directly support arguments that the testator could not understand the nature and extent of the property or the natural objects of bounty. Other dementias may produce different vulnerabilities.

The Importance of Contemporary Evidence

For Alzheimer's contests, contemporary evidence — evidence from the period immediately around the will signing — is most valuable. Medical records from years before the signing have limited relevance to capacity at the moment of signing. Records from immediately before or after the signing are central.

The contestant should gather records covering:

• The week of the signing.
• The month of the signing.
• The six months before the signing.
• The period after the signing showing how the disease progressed.

Combining with Undue Influence

Alzheimer's contests typically combine capacity arguments with undue influence arguments. The disease makes the testator more vulnerable to influence; the influence explains why the will reflects something other than the testator's true wishes.

The combined theory is often stronger than either theory alone. Evidence of cognitive decline supports the influence theory by establishing vulnerability. Evidence of influence supports the capacity theory by explaining how a will got signed that the testator could not have meaningfully created on their own.

What to Bring to the Initial Consultation

If you are considering contesting a will because of the testator's Alzheimer's, bring:

• A copy of the will if you have one.
• Any prior wills you know about.
• The decedent's death certificate.
• Information about the decedent's medical history — physicians, hospitals, care facilities.
• Names of family members and friends who can describe the decedent's condition.
• Information about the favored beneficiary's role in the family.
• Any records of suspicious financial transactions during the decedent's later years.