Challenging a Will on Ground of Mental Incompetence

One of the most common grounds to challenge a will is to claim that the person who wrote the will did not have the mental capacity to fully understand what they were doing when the will was signed. Basically, for a will to be considered valid the person signing the will must have complete understanding of what they are doing.

For a will to be valid the mental capacity of the person signing the will must meet certain requirements.

• If the person writing the will cannot name their own children without having to be reminded of what their names are, that person is probably not mentally competent enough to sign a will and have it be valid.
• The person signing the will must know the extent of their wealth and assets. This means that if asked, the person should be able to say how much money they have in the bank and accurately describe what their assets are.
• It is essential that the person that signs the will be aware of who their beneficiaries are, and if they are cutting someone out of the will, they should be able to explain why.
• The person signing the will must be completely aware of what the document is that they are singing.

The rules regarding competency are based on the facts and circumstances involved. There are conditions where a persons competency will be brought into question; that would be if the person signing the will was suffering from dementia or delirium.

A person may be suffering from delirium if they have an illness that causes fever, such as an infection or if they are taking medications that can have an affect on their mental capacity. Generally, if an elderly person is ill enough to be in the hospital they will probably be suffering from delirium and not in any state to write a will. In some cases the law will recognize that the person may have times where they are lucid enough to understand that they are singing a will, but many geriatric experts are now opposing this conclusion if the person is still ill and in the hospital.

Someone that is suffering from dementia will have a progressive illness such as Alzheimers, or they may have suffered a stroke. If someone has this type of illness there is usually no improvement. With dementia, judging if the person has the mental capacity to sign a will can be difficult due to the nature of the illness. In many cases the person may seem completely normal, but still lack the capacity to manage their own money or sign a will. Writing or modifying a will after someone has been diagnosed with dementia can cause problems.

If you feel that you may have grounds to challenge a will based on the persons lack of mental capacity, you will want to contact an attorney experienced in probate and will contests to discuss your case.