As an estate planning attorney, one of the most common concerns I hear is, “What if someone challenges my plan after I’m gone?”
Unfortunately, disputes do happen – especially when a family member feels upset, surprised, or left out. In some cases, a person may even claim that the person who created the will or trust was not mentally competent at the time the documents were signed.
If a court agrees, your estate planning documents could be invalidated, and your assets could be distributed based on state law – not based on your wishes. This risk increases if you disinherit someone who expected an inheritance or if you have a medical condition that affects memory or cognition.
The good news is that you can take proactive steps now to help ensure your plan is respected later.
Why Mental Competence Matters
Most states assume that adults have the mental capacity to sign a will or trust. This means that anyone challenging your plan must prove you lacked capacity at the time you signed it.
Even so, taking extra steps now to show that you were acting knowingly and intentionally can make your wishes much harder to challenge later.
Ways to Help Prove You Were Mentally Competent
1. Get a Medical Evaluation
One of the strongest ways to support your capacity is to have a doctor – ideally your primary physician or a cognitive specialist – evaluate you around the same time you sign your documents.
The doctor can provide written confirmation of your mental competence.
As your attorney, I can give your doctor guidance on the legal standard for capacity so their documentation directly addresses what a court would look for.
2. Consider Making a Gift
If you are disinheriting someone or leaving them a smaller share than they expect, giving them a small gift around the same time you sign your estate plan can be helpful.
If they accept the gift, they are essentially acknowledging that you were capable of giving it – making it harder for them to later claim you lacked capacity.
This strategy only works if your state uses the same legal standard for both gifting and estate planning.
3. Document Your Reasons
If you are choosing to leave someone out of your plan or reduce their inheritance, clearly explain your reasoning to your attorney.
You may also privately write down your reasons and keep that note with your estate planning documents.
This written explanation shows that you made a thoughtful, intentional decision.
However, it’s important not to include those reasons directly in your will or trust to avoid giving challengers more material to argue about.
What Does “Mental Competence” Actually Mean?
The exact legal standard depends on your state and the type of document you’re signing. But generally, mental competence requires a basic understanding of:
- What you own
- Who you want to receive your assets
- That your document distributes your property when you die
Importantly, even individuals with conditions like dementia may still meet the required standard if they have moments or periods of clarity at the time of signing.
Different Documents Require Different Levels of Capacity
Wills
The standard for signing a will – called testamentary capacity – is typically very low. You only need to generally understand:
- The nature and extent of your property
- Who your beneficiaries are
- That your will distributes your assets at death
Gifts
Some states use the same standard as wills, while others require a higher level of capacity. In those states, you must also understand:
- The financial impact of the gift
- How the gift may affect your long-term security
Trusts
Capacity requirements vary:
- Revocable living trusts often use the same lower standard as wills.
- Irrevocable trusts may use a stricter standard similar to entering a contract.
For an irrevocable trust, you must understand:
- The nature and purpose of the trust
- Your rights and responsibilities
- The consequences for yourself and others
- The risks and benefits of creating it
Take Action Before Concerns Arise
If you worry that a family member may be unhappy with their inheritance or that someone may try to challenge your plan, now is the time to act.
We can walk you through steps to help:
- Strengthen your estate plan
- Document your intentions clearly
- Reduce the likelihood of disputes
- Protect your wishes even if your health changes later
If you’re ready to create or update your estate plan – or if you would like to take additional steps to protect it – please contact us. We are here to guide you long before capacity ever becomes a concern.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. The Life & Legacy Planning Session will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a 15-minute introductory call today.