Legal Question in Wills and Trusts in New Jersey

Re: Changing a Will after dimentia

I agree with Jon that this is a difficult question to answer. The requirement for capacity to make a Will in most states is minimal. Essentially, if the person knows what they have (does not have to be precise), who are the natural objects of their bounty (spouse, children, etc.) and a reasonable manner of devising their estate, this is sufficient. Also, one with diminished capacity may still be able to act rationally at times. I have the client with questionable capacity examined by their doctor immediately prior to the execution of the Will, and have the doctor also be a witness. Thus, if a question of capacity arises, the doctor can testify positively. In the same vein, does the personal have a Durable Power of Attorney allowing the holder to act for the maker in such matters as making a Will. This is a critical document to have, in the event capacity is reduced to such extent that the person cannot act. The attorney must be able to establish that at the time the Will or revision is made, sufficient capacity exists. Coincidently, I am currently involved in a Will contest where this is the issue and I have to verify the grounds and basis under which I believed the maker of the Will had the requisite capacity, even if the disposition of assets was unusual.

Re: Changing a Will after dimentia

I have been involved in several cases like this. NO, you have a person change their will if they do not understand what they are doing due to dementia or some other cause. Please call me to discuss. 973 890 0400.

Re: Changing a Will after dimentia

There is no easy answer to your question because it really depends on the exact nature of the medical/mental condition. Obviously, someone with Alzheimer's disease may not have the capacity to sign a Will, but that can depend on their condition and in some cases, it may still be possible for them to sign (each case is different).

The attorney should try to satisfy himself that the person is able to sign the Will. If it is obvious that the person is incapacitated, he or she should not prepare the new Will. In a 'border-line' case, he or she may want a medical evaluation made to determine whether the person is capable of signing.