When someone wants to draft an estate plan, one key element is that they have testamentary capacity. This often means that they can demonstrate the cognitive ability to understand their decisions and show that they are of sound mind. An estate plan is a binding legal document, so it is necessary that the person truly understands the choices they are making at that time.
For many adults, testamentary capacity is not an issue at all. The average person already has it. But there are certain things that can call it into question, such as when an elderly person is experiencing significant cognitive decline, perhaps following a diagnosis of something like Alzheimer’s disease, dementia or another degenerative brain disorder.
Challenging an estate plan
In some cases, a lack of testamentary capacity can be cited as a reason to challenge someone’s estate plan.
For instance, say that a person is in their 70s when they decide to update their estate plan. A beneficiary who was included in an earlier draft of that plan is removed and not mentioned in the newer plan.
To the other beneficiaries, it appears that this person has been intentionally disinherited and should not receive any inheritance. But to the person who has been left out, it may look like an oversight. They may claim that the elderly person forgot to include them in the update due to the effects of cognitive decline and that the new version of the estate plan, therefore, does not reflect their true wishes and should not be enforced.
This can lead to some very complicated estate disputes, and it is important for all parties involved to understand their legal rights and options.