Testamentary Capacity in a Will Contest in New York

1. What they own
2. Who their relatives and friends are
3. What is in their will.

When contesting a will based on lack of mental capacity, you have a higher chance of success if the testator suffered from a dementia disorder, mental illness, or was in a weak physical state. The fact that the testator was taking potent mind-altering pharmaceuticals during the will execution can also play a significant role.

Dementia Disorders – There is a wide range of dementia disorders that can interfere with a person’s capacity to make a will.

• Alzheimer’s – this is the biggest cause of dementia. Early onset can start as early as the age of 40 or 50, and progresses with age. It destroys a person’s cognitive functioning and may cause them to lose the capacity to make a will.
• Vascular Dementia – often caused by a stroke, results from obstruction of blood flow to the brain
• Parkinson’s Decease – degeneration of nerves in the brain.
• Frontotemporal Dementia – deterioration and shrinkage in front and side areas of the brain
• Dementia due to head injuries
• Dementia due to HIV or medications

Changes in memory and behavior in older adults usually point to dementia. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make a will. The more dementia progresses, the harder it becomes for a person to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will contest to succeed.

Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order to be successful in contesting a will, the objectant to the will is going to have to show how the mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:

• Depression – The will-maker feels hopeless and passive and does not care what happens to their estate. The elderly often suffer from depression towards the ends of their lives. Family conflicts relating to inheritance only exacerbate their depression.
• Paranoia – The pervasive distrust of paranoia patients can make it easier to manipulate and “triangulate” them into excluding some people from their will.
• Bipolar – Bipolar patients experience mood swings. People who manipulate those patients can exploit those mood swings in order to get the patient to change their Will.
• Schizophrenia – Schizophrenia patients experience delusions and distorted reality. People who benefit from their will can take advantage of those mental deficiencies in order to manipulate the patient into making a will bequest. More about schizophrenia here.

Personality Disorders – personality disorders do not automatically mean that the decedent lacked capacity. But they can still make a big difference in contesting a will. For example, if the person who made the will had a “Cluster C” Dependent Personality Disorder, that person can be vulnerable to having “well-wishers” unduly influence them into making a will. When using personality disorders as a factor in challenging the will, we look to symptoms such as

• excessive dependence on others
• submissive behavior
• fear to have to provide self-care
• difficulty disagreeing with others and
• tolerance of poor or abusive treatment.

Weak Physical State – We contest wills decedents who were in such a weak physical state that it can be said that their physical state adversely influenced their mental capacity.

Mind-Altering Pharmaceuticals – The fact that the decedent was taking potent mind-altering pharmaceuticals during the will execution can play a difference. When the decedent is in an altered state, they can have a significantly reduced capacity in understanding the facts of daily life, including the factors involved in making a will. Sedatives, antipsychotic and pain medications can push a person’s mental state over the edge of capacity.

“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out, sometimes lucid and sometimes not. If you are contesting a will, you will try to win by showing that the decedent was never lucid at all, or was only lucid on rare occasions and the time of the making of the will was not one of those occasions. Those defending the will are going to say that the time of will execution was a “lucid moment.”

Some will contest lawyers and medical professionals hold the view that the “lucid moment” concept is out of date with the modern understanding of mental capacity. Their view is that since a person has no mental capacity, it doesn’t “return” to them on some occasions. However, at this time, New York courts still consider “lucid moments,” so this is an important factor to consider in New York will contests.

Circumstantial Evidence – In contesting a will, your lawyer does not have to prove that the decedent lacked capacity on the exact day of the will signing. Instead, we can use circumstantial evidence to show that the decedent lacked capacity during that time period.

Obtaining Medical Records – The most effective strategy for challenging the decedent’s mental capacity is to obtain medical records from the medical providers and then go through the medical records and see if there are any notes that point to incapacity, such as evaluations from medical personnel and check for a list of Alzheimer’s or dementia medications, sedatives and antipsychotics.

Different forensic and analytical tests will be used to asses the mental capacity of the person. The decedent might have been administered a Mini-Mental Exam or the Clock Test while they were still alive. After their death, when an in-person mental exam cannot be administered. But we can still try to use models of mental capacity such as PARADISE – 2 to argue that the testator had impaired brain function at the time of the events in question.