Getting older is an inevitable part of life, as is thinking about what will happen to those you love after you’re gone. For this reason, many choose to draft estate planning documents and revise them throughout their lifetimes. However, what happens when someone’s mental capacity is compromised and they wish to change their estate plans? And who is responsible for determining that this person is in the right mental state to make such a significant change?
Unfortunately, these situations happen all the time. Someone makes a drastic change to their will and/or trust late in life resulting in heartache, hostility, and potentially long drawn out legal proceedings. The question that must be asked is whose responsibility it is to confidently assert that the person looking to change their estate plan is of sound mind and memory and free from motivated external influence? Does blame fall on the doctors or the lawyer charged with executing changes to their client’s estate planning documents? If you guessed the latter, ethically, you would be correct.
According to Illinois law, one must have testamentary capacity to execute a legally binding will, meaning that a person must be mentally sound when executing a will. You may have heard this referred to as “being of sound mind and memory.” The legal definition of this turn of phrase refers to “having an understanding of one’s actions and reasonable knowledge of one’s family, possessions and surroundings. Testamentary capacity is often the cornerstone of cases surrounding contested wills. If a family member or beneficiary has reason to believe that the decedent did not have full understanding and agreement of the contents of a will, they are allowed to fight the matter in court. It then falls to the court to determine if the decedent was of sound body and mind when they made the changes to their estate plans. If they find that the lawyer who executed the will failed in their due diligence of ensuring the testamentary capacity of their client prior to said execution, there may be a strong backing for a case contesting the decedent’s will.
Evaluating testamentary capacity is always required in estate planning, but especially in cases where the testator suffers from degenerative neurological diseases (Alzheimer’s, dementia, etc.), mental illness, severe physical illness, and/or is under the influence of alcohol or drugs. Legally, a will can only be made valid if the testator meets the following criteria:
- Over 18 years of age;
- Of sound mind and memory;
- Understands the assets owned in the will and their value;
- Able to identify beneficiaries and understand their relationship to them;
- Understands the plan for how assets will be held and/or distributed after their death; and
- Is not under the influence of alcohol or drugs.
If the testator meets these requirements, then, by the letter, they have the testamentary capacity to execute a will. However, this black and white criteria doesn’t account for ethical gray spaces.
Say the testator has to be reminded a few times of the relationship they have with a close family member, or they forget about a bank account or some jewelry before being reminded and “remembering.” If the testator eventually meets the mental capacity requirements with a little help, who’s to say that the lawyer executing the will had any responsibility to step in and say that the testator is not mentally sound? After all, the boxes got checked. From an ethical standpoint, the lawyer ought to step in and take protective action, especially in cases where there are red flags regarding major late-stage changes to someone’s will or trust.
All that is to say, when you’re ready to start drafting your will or trust, ensure that you utilize counsel that has an understanding of your interests and will protect your interests through the execution of your estate plan. Contact Hays Firm today for an initial consultation, and let us help you navigate the process with compassion and understanding.
**Disclaimer**
The content of this blog is for general informational purposes only and does not constitute legal advice. Please consult with a qualified attorney or lawyer for advice specific to your situation.
