When a young adult turns 18, they become a legal adult. One of the many rights that comes with adulthood is the right to plan an estate. Individuals can designate beneficiaries to inherit their assets after they die.
Most adults do not establish estate plans when they are 18 or even in their twenties. Quite a few people wait until they are near retirement or already retired to start thinking about their legacy after they die. In some cases, people wait so long that their health may have already begun to decline.
Others may then have questions about whether they still had the necessary testamentary capacity to draft a will. A lack of capacity is one of the reasons that family members or beneficiaries might contest a will in probate court.
At what point can an older adult lose the capacity to draft a legally enforceable will?
Age does not determine testamentary capacity
Some people assume that those who are in their 80s or 90s are too old to create or update legal documents. That is not true. Many people remain of sound mind indefinitely despite dealing with physical changes as they age.
Testamentary capacity theoretically persists until someone dies unless they experience cognitive decline. Certain mental health issues, like schizophrenia, might eliminate an individual’s testamentary capacity. Age-related health conditions, such as Alzheimer’s disease, could also raise questions about an individual’s ability to draft a will.
Generally speaking, the people questioning someone’s testamentary capacity have to establish that they couldn’t understand the consequences of their choices. They must convince courts that the testator was unable to name their beneficiaries or list their property. They may also need to show that the testator could not understand how the documents they drafted might affect their loved ones.
Meeting that relatively high burden of proof can be difficult. Mild forgetfulness or advanced age are not enough on their own to convince the probate courts that an individual lacked the capacity necessary to draft a valid and enforceable will.
Reviewing the circumstances at the time of a will’s creation with a skilled legal team could help frustrated family members determine whether probate litigation may be an option in their situation. In cases wherein a testator did not understand the implications of their choices, their loved ones may be able to convince the courts to set aside the documents that they drafted.